Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration. (b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. (c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter. (d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months. (e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering. (f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder. (g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 3 contracts
Sources: Registration Rights Agreement (210 Capital, LLC), Restructuring Support Agreement (Crossroads Systems Inc), Registration Rights Agreement (210/P10 Acquisition Partners, LLC)
Demand Registration. (a) At Subject to the terms and conditions of this Agreement, including Section 2(c), if at any time beginning following May 1, 2018, the Company receives a written request from the Investor that the Company register under the Securities Act Registrable Securities representing at least 10% of the Registrable Securities held by the Investor or the Permitted Holders, then the Company shall file, as promptly as reasonably practicable but no later than the applicable Filing Deadline, a registration statement under the Securities Act covering all Registrable Securities that the Investor requests to be registered. The registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and, if the Company is a WKSI as of the Filing Deadline, shall be an Automatic Shelf Registration Statement. The Company shall use its commercially reasonable efforts to cause the registration statement to be declared effective or otherwise to become effective under the Securities Act as soon as reasonably practicable but, in any event, no later than the Effectiveness Deadline, and shall use its commercially reasonable efforts to keep the registration statement continuously effective under the Securities Act until the earlier of (1) the date on which the Investor notifies the Company in writing that the Registrable Securities included in such registration statement have been sold or the offering therefor has been terminated or (2) (x) thirty (30) Business Days following the date on which such registration statement was declared effective by the SEC, if the Company is a WKSI and filed an Automatic Shelf Registration Statement in satisfaction of such demand, (y) forty (40) Business Days following the date on which such registration statement was declared effective by the SEC, if the Company is not a WKSI and registered for resale the Registrable Securities on Form S-3 in satisfaction of such demand or (z) fifty (50) Business Days following the date on which such registration statement was declared effective by the SEC, if the Company is neither a WKSI nor then eligible to use Form S-3 and registered for resale the Registrable Securities on Form S-1 or other applicable form in satisfaction of such demand; provided that each period specified in clause (2) of this sentence shall be extended automatically by one hundred eighty (1801) Business Day for each Business Day that the use of such registration statement or prospectus is suspended by the Company pursuant to any Suspension Period, pursuant to (d) below or pursuant to Section 5(j).
(b) If the Investor intends to distribute the Registrable Securities covered by such Investor’s request by means of an underwriting, (i) the Investor shall so advise the Company as a part of its request made pursuant to Section 2(a) and (ii) the Investor shall have the right to appoint the book-running, managing and other underwriter(s) after consultation with the Company.
(c) The Company shall not be required to effect a registration pursuant to this Section 2: (i) after the Company has effected three registrations pursuant to this Section 2, and each of such registrations has been declared or ordered effective and kept effective by the Company as required by Section 5(a); or (ii) more than twice during any single calendar year; provided, however, that a request for registration will not count for the purposes of this limitation if (x) the Investor determines in good faith to withdraw (prior to the effective date of the registration statement relating to such request) the proposed registration or (y) the registration statement relating to such request is not declared effective within the earlier of Effectiveness Deadline.
(d) Notwithstanding anything to the contrary in this Agreement, (1) upon notice to the Investor, the Company may delay the Filing Deadline and/or the Effectiveness Deadline with respect to, or suspend the effectiveness or availability of, any registration statement for up to ninety (90) days in the aggregate in any twelve-month period (a “Suspension Period”) if the Company would have to make an Adverse Disclosure in connection with the registration statement; provided that (i) any suspension of a registration statement pursuant to Section 6(b) or Section 5(j) shall be treated as a Suspension Period for purposes of calculating the maximum number of days of any Suspension Period under this Section 2(d) and (ii) no Suspension Period may overlap with any redemption pursuant the Certificate of Designations (including Section 5 thereof) through the date that is thirty (30) Business Days following any such redemption; and (2) upon notice to the Investor, the Company may delay the Filing Deadline and/or the Effectiveness Deadline with respect to any registration statement for a period not to exceed thirty (30) days prior to the Company’s good faith estimate of the launch date of, and ninety (90) days after the Closing Dateclosing date of, holders a Company initiated registered offering of a majority of equity securities (including equity securities convertible into or exchangeable for Common Stock); provided that (i) the Company is actively employing in good faith all commercially reasonable efforts to launch such registered offering throughout such period, (ii) the Investor and Permitted Holders are afforded the opportunity to include Registrable Securities then outstanding may request in such registered offering in accordance with Section 3 and (iii) the right to delay or suspend the effectiveness or availability of such registration under the Securities Act of all or any portion of their Registrable Securities statement pursuant to a Registration Statement on Form S-1 or this clause (2) shall not be exercised by the Company more than two (2) times in any successor form thereto twelve-month period and not more than ninety (each90) days in the aggregate in any twelve-month period, a “Long-Form Registration”other than solely due to the Financial Restatement (as defined in the Purchase Agreement) for so long as the Company is using its best efforts to issue the Restated Financial Statements (as defined in the Purchase Agreement). Each request If the Company shall delay any Filing Deadline pursuant to this clause (d) for more than ten (10) Business Days, the Investor may withdraw the demand therefor at any time after such ten (10) Business Days so long as such delay is then continuing by providing written notice to the Company to such effect, and any demand so withdrawn shall not count as a Long-Form Registration shall specify demand for registration for any purpose under this Section 2, including Section 2(c).
(e) Notwithstanding the foregoing, if the managing underwriter(s) of an underwritten offering in connection with any registration pursuant to this Section 2 advises the Company and the Investor in writing that, in its good faith judgment, the number of Registrable Securities requested to be included in such offering exceeds the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders number of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to which can be included sold in such registration. The Company shall prepare and file with (or confidentially submit to) offering at a price acceptable to the Commission a Registration Statement on Form S-1 or any successor form thereto covering all Investor, then the number of the Registrable Securities that the holders thereof have so requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and offering shall use its best efforts be reduced to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (eachshares which, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request andmanaging underwriter, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in at such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderprice.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Synchronoss Technologies Inc), Investor Rights Agreement (Synchronoss Technologies Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) after the earlier of 180 days after the Closing DateIPO or five (5) years after the date of this Agreement, holders of a majority of the Registrable Securities then outstanding may request (the “Registration Request”) registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request Registration Request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such requestRegistration Request, the Company shall promptly (but in no event later than five (5) 15 days following receipt thereof) deliver notice of such request Registration Request to all other holders of Registrable Securities who shall then have five (5) 15 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) 90 days after the date on which the initial request Registration Request is given (the “Long-Form Filing Deadline”) and shall use its best commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterthereafter (but, in the case of any such Long-Form Registration filed after the IPO only, in no event later than the 45th calendar day following the date on which such Long-Form Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the Commission, the 90th calendar day following the date such Long-Form Registration Statement is required to be filed hereunder) (the “Post-IPO Long-Form Effectiveness Deadline”)). The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datean IPO, the Company shall use its best commercially reasonable efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to deliver a Registration Request to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request Registration Request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) 15 days following receipt thereof) deliver notice of such request Registration Request to all other holders of Registrable Securities who shall then have five (5) 15 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) 30 days after the date on which the initial request Registration Request (the “Short-Form Filing Deadline” and, together with the Long-Form Filing Deadline, the “Filing Deadlines”) is given and shall use its best commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (thereafter but in no event later than five the 45th calendar day following the date on which such Registration Statement is required to be filed hereunder (5or, in the event of a “full review” by the Commission, the 90th calendar day following the date such additional Registration Statement is required to be filed hereunder) days following receipt thereof(the “Short-Form Effectiveness Deadline” and, together with the Post-IPO Long-Form Effectiveness Deadline, the “Effectiveness Deadlines”). The Company shall not be required to effect a Short-Form Registration more than two (2) deliver notice of such request to all other times for the holders of Registrable Securities who shall then have five as a group.
(5c) days from If a Registration Statement covering the date such notice is given resale of all of the Registrable Securities required to notify be covered thereby and required to be filed by the Company pursuant to this Agreement (A) is not filed with the Commission on or before the applicable Filing Deadline for such Registration Statement (a “Filing Failure”) (it being understood that if the Company files a Registration Statement without affording one counsel selected by holders of a majority of such Registrable Securities the opportunity to review and comment on the same, the Company shall be deemed to not have satisfied this clause (A) and such event shall be deemed to be a Filing Failure) or (B) is not declared effective by the SEC on or before the applicable Effectiveness Deadline for such Registration Statement (an “Effectiveness Failure”) (it being understood that if on the second Business Day immediately following the effective date for such Registration Statement the Company shall not have filed a “final” prospectus for such Registration Statement with the Commission under Rule 424(b) (whether or not such a prospectus is technically required by such rule), the Company shall be deemed to not have satisfied this clause (B) and such event shall be deemed to be an Effectiveness Failure), or (C) on any day after the effective date of a Registration Statement, sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a suspension or delisting of (or a failure to timely list) the Common Equity on the then principal market for such Common Equity or any other limitations imposed by the principal market for the Common Equity, or a failure to register a sufficient number of Common Equity or by reason of a stop order) or the prospectus contained therein is not available for use for any reason, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period (a “Maintenance Failure”; and each of a Filing Failure, an Effectiveness Failure and a Maintenance Failure being referred to as a “Registration Default”), then, as partial relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell its Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in writing equity, including, without limitation, specific performance), the Company shall pay to each holder of their desire Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1%) of the aggregate purchase price paid by the Investor with respect to the Registrable Securities required to be included in such registrationRegistration Statement (1) on the date of such Filing Failure, Effectiveness Failure, or Maintenance Failure as applicable; (2) on every thirty (30) day anniversary of (I) a Filing Failure until such Filing Failure is cured or (II) an Effectiveness Failure until such Effectiveness Failure is cured or (III) a Maintenance Failure until such Maintenance Failure is cured. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, if an event or failure giving rise to the Registration Delay Payments is cured prior to any thirty (30) day anniversary of such event or failure, then such Registration Delay Payment shall be made on the third (3rd) Business Day after such cure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall prepare bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to an Investor with respect to any period during which all of such Investor’s Registrable Securities may be sold by such Investor without restriction under Rule 144 (including, without limitation, volume restrictions) and file with (or confidentially submit to) without the Commission need for current public information required by Rule 144(c)(1). In addition, notwithstanding the foregoing, a Shelf Registration Default shall be deemed not to have occurred and be continuing, and no Registration Delay Payments shall accrue as a result thereof, in relation to a Registration Statement covering all if (i) (A) such Registration Default has occurred solely as a result of material events, with respect to the Registrable Securities Company that the holders thereof have requested would need to be included described in such Shelf Registration within ten (10) days after Statement or the date on which related Prospectus, and the initial request Company is given proceeding promptly and shall use its best efforts in good faith to cause such Shelf amend or supplement the Registration Statement to describe such material events or (B) the Registration Default relates to any information supplied or failed to be declared effective supplied by the Commission as soon as practicable thereaftera holder of Registrable Securities.
(d) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) months 180 days after the effective date of a previous Demand Registration, Shelf Takedown Long-Form Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority included such Registrable Securities for registration thereunder and sold all of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 180 days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange ActAct (each, a “Grace Period Event”); provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration; provided, further that a Registration Default shall be deemed not to have occurred and be continuing, and no Registration Delay Payments shall accrue as a result thereof, in relation to a Registration Statement during the period that the Grace Period Event or its effect is continuing (up to a maximum 180-day allowable grace period). The Company may delay a Demand Registration or Shelf ▇▇▇▇▇ Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), ) or Section 2(c) ), and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration or Shelf Takedown shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of units or shares of Common Stock Equity proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other units or shares of Common Stock Equity proposed to be included in such underwritten offering, exceeds the number of units or shares of Common Stock Equity which can be sold in such underwritten offering and/or the number of units or shares of Common Stock Equity proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock Equity proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the units or shares of Common Stock Equity that the holders of Registrable Securities propose to sell, and (ii) second, the units or shares of Common Stock Equity proposed to be included therein by any other Persons (including units or shares of Common Stock Equity to be sold for the account of the Company and/or other holders of Common StockEquity) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 3 contracts
Sources: Registration Rights Agreement (ASP Isotopes Inc.), Registration Rights Agreement (ASP Isotopes Inc.), Registration Rights Agreement (ASP Isotopes Inc.)
Demand Registration. (ai) At the later to occur of (i) one year following the closing of any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority initial public offering of the Registrable Securities then outstanding Company's securities, and (ii) that date upon which the Company is eligible to register the Warrant Shares for resale on a Form S-3, the Holder may deliver a written request (the "Notice") executed by the Holder and requesting registration under of the Securities Act resale by Holder of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”)the Purchased Shares. Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon As soon as practicable after receipt of any such requestthe Notice, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice at its sole cost and expense file a registration statement with the Commission on Form S-3 or any successor form, under the Securities Act, covering the issuance of such request the Warrant Shares issuable to all other holders the Holder upon exercise of Registrable Securities who shall then have five (5) days from the date such notice is given to notify Warrant or the Company in writing resale of their desire to be included in such registrationthe Warrant Shares issuable upon exercise of the Warrant by the Holder. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall will use its best efforts to cause have such Registration Statement to be registration statement declared effective by the Commission as soon as practicable possible thereafter, and shall keep such registration statement current and effective until such time as the Warrant Shares issuable upon exercise of the Warrant may be sold by the Holder at any time without restriction or pursuant to the provisions of Rule 144(k) of the Commission or until such earlier date as all of the Purchased Shares registered pursuant to such registration statement shall have been sold or otherwise transferred by the Holder to a third party. The Company shall also prepare and file with the Commission such amendments and supplements to such registration statement (and the prospectus used in connection therewith) as may be necessary to update and keep such registration statement (and the prospectus used in connection therewith) current and effective for such three-year period and to comply with the provisions of the Securities Act with respect to the sale of all securities covered by such registration statement.
ii) The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under registration pursuant to this Section 2(a11(a): (i) unless after the Company has effected one (1) registration pursuant to this Section 11(a), and until it has become effective and the holders requesting such registration are able to register has either (A) been declared or ordered effective or (B) the request for such registration has been subsequently withdrawn by the Holder (and sell such withdrawal is not based on materially adverse information concerning the Company of which the Holder was not reasonably aware at least a majority the time of such request); or (ii) if the Warrant Shares issuable upon exercise of the Registrable Securities requested Warrant may be sold by the Holder at any time without restriction or pursuant to be included in the provisions of Rule 144(k); or (iii) if Form S-3 (or a successor or similar form) is not available for such registration.
offering by the Holder; or (biv) After the Registration Date, if the Company shall use its best efforts furnish to qualify and remain qualified the Holder following receipt of his written request for registration, a certificate signed on behalf of the Board of Directors 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 register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified and its shareholders for such registration statement to be filed and it is therefore essential to defer the use filing of a Registration Statement on Form S-3 or any successor form theretosuch registration statement, in which event the holders of Registrable Securities Company shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request defer such filing for a Short-Form Registration shall specify the number period of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly not more than one hundred eighty (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30180) days after receipt of the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each Holder's request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 3 contracts
Sources: Warrant Agreement (Tag It Pacific Inc), Warrant Agreement (Tag It Pacific Inc), Warrant Agreement (Tag It Pacific Inc)
Demand Registration. (a) At any time and from time to time beginning one hundred eighty (180) days on the date that is nine months after the Closing Datedate of this Agreement, holders of a majority the Shareholder may request in writing (“Request”) that the Company register under the Securities Act all or part of the Registrable Securities then outstanding may request registration under that are Beneficially Owned by the Securities Act of all Shareholder or any portion of their Registrable Securities pursuant to its Affiliates (a) on a Registration Statement on Form S-1 F-3 or any successor other available form thereto (each, a “Long-Form Demand Registration”) or (b) on a Shelf Registration Statement covering any Registrable Securities (or otherwise designating an existing Shelf Registration Statement with the SEC to cover the Registrable Securities) (a “Shelf Registration”), in each case, covering the sale or distribution of the Registrable Securities from time to time by the Shareholder, on a delayed or continuous basis pursuant to Rule 415 of the Securities Act, including by way of underwritten offering, block sale or other distribution plan designated by the Shareholder. Upon receipt of any Request (it being understood that unless otherwise notified by the Shareholder, the Shareholder shall be deemed to have made such Request as of the date that is nine months after the date of this Agreement), the Company shall as promptly as practicable but in any event not later than the date that is thirty (30) calendar days after receipt by the Company of such Request, in accordance with the provisions of this Agreement, file a Registration Statement with the SEC covering all such Registrable Securities, in accordance with the method or methods of distribution thereof elected by the Shareholder, provided, that nothing in this Agreement shall require the Company to (i) cause such registration to become effective prior to the date that is one year after the date of this Agreement or (ii) file a Registration Statement prior to the date that is one year after the date of this Agreement if the Registration Statement to be filed is an Automatic Shelf Registration Statement. In the event that any such Request involves a Hedging Arrangement in which the counterparty to the Shareholder uses the Shelf Registration Statement to effect short sales of Registrable Securities, the consent of the Company shall be required in connection with such Request, such consent not to be unreasonably withheld, delayed or conditioned. The Shareholder shall be entitled to make no more than two (2) Requests in any twelve-month period and four (4) Requests in the aggregate (it being understood that (x) each underwritten offering under this Agreement shall count as a Request, even if such offering is conducted pursuant to a Shelf Registration Statement, unless the Shareholder withdraws its request in the circumstances described in the second sentence of Section 5.6, and (y) the deemed Request contemplated by the parenthetical set forth in the second sentence of this Section 5.1 shall not count as a Request for purposes of this sentence), and each such Request shall be to register an amount of Registrable Securities having an aggregate value of at least $200,000,000. The Company shall not be obligated to effect a Demand Registration during the sixty (60) calendar day period following the effective date of a Registration Statement pursuant to any other Demand Registration. Each request for a Long-Form Registration Request pursuant to this Section 5.1 shall be in writing and shall specify the number of Registrable Securities requested to be included registered and the intended method of distribution of such Registrable Securities. No request for registration shall count for the purposes of the limitations in this Section 5.1 if (v) the Long-Form Registration. Upon receipt Shareholder determines in good faith to withdraw (prior to the effective date of any the Registration Statement relating to such request) the proposed registration, upon written notice to the Company, due to marketing conditions or regulatory reasons prior to the execution of an underwriting agreement or purchase agreement relating to such request; provided that the Shareholder reimburses the Company shall promptly (but for all Registration Expenses incurred in no event later than five (5) days following receipt thereof) deliver notice good faith by the Company in connection with such Demand Registration prior to the date of such request withdrawal, (w) the Registration Statement relating to all other holders of Registrable Securities who shall then have five a Demand Request is not declared effective within one hundred eighty (5180) calendar days from after the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 is filed with the SEC (other than by reason of the Shareholder having refused to proceed or any successor form thereto covering all a misrepresentation or an omission by the Shareholder), (x) prior to the sale of at least fifty percent (50%) of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt applicable registration relating to a Demand Request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any such request, reason and the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of fails to have such request stop order, injunction, or other order or requirement removed, withdrawn or resolved to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all reasonable satisfaction of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration Shareholder within thirty (30) calendar days after the date on which of such order, (y) the initial Shareholder withdraws its request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt circumstances described in the second sentence of any such requestSection 5.6, the Company shall promptly or (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit toz) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested conditions to be included closing specified in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown underwriting agreement or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses purchase agreement entered into in connection with the registration relating to such registrationrequest are not satisfied as a result of a default or breach thereunder by the Company that proximately and primarily caused the failure of such conditions. The Company may delay a Demand Registration Nothing in this Article 5 shall affect, supersede or Shelf Takedown hereunder only once in otherwise modify any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration restrictions on Transfer set forth in Article 2 or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares provision of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderthis Agreement.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 3 contracts
Sources: Stockholders Agreement (Allergan PLC), Shareholder Agreement (Allergan PLC), Shareholder Agreements (Teva Pharmaceutical Industries LTD)
Demand Registration. (a) At any time beginning one hundred eighty on the date falling six months following an Initial U.S. Offering, the Holders of at least ten percent (18010%) days after or more in the Closing Date, holders aggregate of a majority of the Registrable Securities then outstanding may shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 F-1 or any successor other appropriate form thereto (each, a “Long-Form "Demand Registration”"). Each request for a Long-Form Demand Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Demand Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days 10 Business Days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities Holders who shall then have five (5) days 10 Business Days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 F-1 or any successor other appropriate form thereto covering all of the Registrable Securities that the holders Holders thereof have requested to be included in such Long-Form Demand Registration within sixty (60) days as soon as practicable after the date on which the initial request is given (but in any event no later than 45 days thereafter) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by By: the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Demand Registration more than two once in any twelve (212) times month period for the holders of Registrable Securities Holders as a group; provided, that a Registration Statement shall not count as a Long-Form Demand Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting Holders included in such registration Demand Registration are able to register all, and sell at least a majority of eighty percent (80%) of, the Registrable Securities requested to be included in such registration.
. Notwithstanding the foregoing, (bi) After if the Registration DateHolders are unable to register all, and sell at least eighty percent (80%) of, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in a registration effected pursuant to this Section 2(a) twice in any twelve (12) month period or (ii) the Short-Form Registration. Upon receipt Demand Registration is withdrawn at the request of any the requesting Holders after the time such requestDemand Registration becomes effective (except as set forth in Section 2(d)(i)-(iii) or otherwise as a result a material adverse change in the business, prospects, results of operations or financial condition of the Company) then the Company shall promptly be deemed to have effected a Demand Registration.
(but in no event later than five (5b) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from At any time beginning on the date such notice is given falling one year after an Initial U.S. Offering, the Investors shall have the right to notify request that the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 F-1, Form F-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto thereto, (a “"Shelf Registration Statement”), the holders of Registrable Securities shall have the right ") to request registration under the Securities Act of register all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “"Shelf Registration”"). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days 10 Business Days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities Holders who shall then have five (5) days 10 Business Days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall use its reasonable best efforts to prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof Holders have requested to be included in such Shelf Registration as soon as practicable (but in any event within ten (1030 days) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by By: the Commission as soon as practicable thereafter.. The Company agrees to use its reasonable best efforts to keep such Shelf Registration Statement continuously effective until the earliest to occur of (i) the third anniversary of the date such Shelf Registration Statement initially is declared effective By: the Commission, (ii) the day after the date on which all of the Registrable Securities covered By: the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement and (iii) the day after the date on which all of the Registrable Securities covered By: the Shelf Registration Statement may be sold without volume or other restriction under Rule 144 promulgated under the Securities Act. Notwithstanding any other provision hereof, no Holder's Registrable Securities shall be included in any registration statement contemplated By: this Agreement unless and until such Holder furnishes to the Company a fully completed notice and questionnaire substantially in the form attached hereto as Schedule B (the "Questionnaire") and such other information in writing as the Company may reasonably request in writing for use in connection with any registration statement and any related application to be filed with or under state securities laws. At any time during which a Shelf Registration Statement is effective, if a Holder covered By: such Shelf Registration Statement delivers a notice to the Company (a "Shelf Takedown Notice") stating that the Holder intends to effect an offering of all or part of its Registrable Securities included in such Shelf Registration Statement in the form of an underwritten firm commitment offering (a "Shelf Takedown") and the Company is eligible to use such Shelf Registration Statement for such Shelf Takedown, then the Company shall take all actions reasonably required, including amending or supplementing (a "Shelf Supplement") such Shelf Registration Statement, to enable such Registrable Securities to be offered and sold as contemplated By: such Shelf Takedown Notice. Each Shelf Takedown Notice shall specify the number of Registrable Securities to be offered and sold under the Shelf Takedown. Upon receipt of a Shelf Takedown Notice, the Company shall promptly (but in no event later than 3 days following receipt thereof) deliver notice of such Shelf Takedown Notice to all other Holders who shall then have 3 days from the date such notice is given to notify the Company in writing of their desire to be included in such Shelf Takedown. To the extent required under the Securities Act to effect such Shelf Takedown, the Company shall use its reasonable best efforts to prepare and file with the Commission a Shelf Supplement as soon as practicable after the date on which it received the Shelf Takedown Notice (but in any event within 10 days) and, if such Shelf Supplement is an amendment to such Shelf Registration Statement, shall use its reasonable best efforts to cause such Shelf Supplement to be declared effective By: the Commission as soon as practicable thereafter; provided, that,
(di) The the Company shall not be obligated required to effect any Demand Registration within more than a total of three (3) months after registrations pursuant to this Section 2(b);
(ii) if the effective date intended method of distribution is an underwritten public offering, the Company shall not be required to effect a previous Demand Registration, Shelf Takedown or pursuant to this Section 2(b) unless such underwriting shall be conducted on a previous Piggyback Registration in which holders "firm commitment" basis, and
(iii) the Company shall not be required to effect any Shelf Takedown to be effected pursuant to this Section 2(b) unless at least ten percent (10%) of the Registrable Securities were permitted to register outstanding at the offer and sale under the Securities Act, and actually sold, at least a majority time of the shares of Registrable Securities requested such request are to be included therein. in such Shelf Takedown.
(c) The Company may may, upon written notice to the Holders of Registrable Securities, postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration, a Shelf Registration Statement or a supplement (Shelf Supplement for a “Shelf Supplement”) for Takedown or suspend the purpose use of effecting an offering pursuant to Rule 415 under the Securities Act or a prospectus included in any successor rule thereto (a “Shelf Takedown”) such Registration Statement, if the Board determines in its reasonable good faith judgment that the filing of such Demand Registration, Shelf Registration or Shelf Takedown or the use of any such prospectus would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or and/or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders Holders of a majority of the Registrable Securities initiating such Demand Registration, Shelf Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses incurred By: the Company and any Holders in connection with such registration, including the fees and expenses of counsel for the Holders. The Company may not delay a Demand Registration, Shelf Registration or Shelf Takedown hereunder only once or suspend the use of a prospectus pursuant to this Section 2(c): (i) more than twice in any period of 12 consecutive months, (ii) the duration of any one suspension or postponement may not exceed 60 days and (iii) the total duration of any suspension or postponement period may not be more than 90 days in any period of 12 consecutive months.
(ed) If the holders of the Registrable Securities Holders initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by By: their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable SecuritiesHolders. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters of each underwritten offering, if any, of the Registrable Securities to be registered in connection with such offering, which underwriter must offering shall be reasonably acceptable to mutually selected By: the holders of Holders owning at least a majority of the Registrable Securities initially requesting to be registered By: the offeringCompany. In the case of any offering or registration initiated By: the Company for its own account or any other offering not effected pursuant to Section 2(a) or Section 2(b) hereof, including any offering pursuant to which the Holders shall have piggyback rights pursuant to Section 3 hereof, the Company shall select a nationally recognized underwriter (or underwriters) for such offering in its sole discretion.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders Holders of a majority of the Registrable Securities initially requesting included in such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities Holders in writing that that, in its reasonable and good faith opinion opinion, the number of shares of Common Stock Shares proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock Shares proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock Shares which can be sold in such underwritten offering and/or the number of shares of Common Stock Shares proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock Shares proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock Registrable Securities that the holders of Registrable Securities Holders propose to sell, and (ii) second, the shares of Common Stock Shares proposed to be included therein by By: any other Persons (including shares of Common Stock Shares to be sold for the account of the Company and/or other holders of Common StockShares) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders Holders thereof on the basis of the number of Registrable Securities owned by proposed to be sold By: each such holderHolder in such Demand Registration or Shelf Takedown.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 3 contracts
Sources: Registration Rights Agreement (TORM PLC), Registration Rights Agreement (TORM PLC), Registration Rights Agreement (TORM PLC)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Datetime, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”); provided, that the Company may use a Registration Statement on Form S-3 or any successor form thereto if the Company would qualify to use such form within 30 days after the date on which the initial request is given. Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) 60 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority 75% of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the The Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) 30 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) months 180 days after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Long-Form Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 60 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once twice in any period of 12 consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting included in such Demand Registration Registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 3 contracts
Sources: Registration Rights Agreement (Neuraxis, INC), Registration Rights Agreement (Neuraxis, INC), Registration Rights Agreement (Neuraxis, INC)
Demand Registration. (a) At any time beginning one hundred eighty (180) days Commencing on or after the Closing Datesix (6)-month anniversary of the date of this Agreement and from time to time so long as there are any Registrable Securities outstanding, holders of if the Company is not eligible to file a Shelf Registration Statement under SEC Guidance, if the Company has not caused a Shelf Registration Statement to be declared effective by the Commission in accordance with Section 2.4(a) or if the Shelf Registration Statement shall cease to be effective, subject to the minimum size limitations in Section 2.5(a), the Holder(s) holding a majority of the Registrable Securities then outstanding may request collectively make one or more written requests to the Company for registration under the Securities Act of all or any portion part of its or their Common Stock constituting Registrable Securities pursuant to a Registration Statement on Form S-1 Securities, including for the avoidance of doubt shares of Common Stock issued or any successor form thereto issuable upon exercise of the Warrants and shares of Common Stock issued or issuable upon exchange of Common Partnership Units (each, a “Long-Form Demand Registration”). Each The Holder(s) submitting the request for a Long-Form Demand Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver concurrently provide written notice of such request the proposed registration to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationHolders. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included as soon as practicable thereafter (but in such Long-Form Registration within no event later than sixty (60) days after the date such request for a Demand Registration), a registration statement on an appropriate form which the initial request Company is given then eligible to use under SEC Guidance with respect to any Demand Registration (a “Demand Registration Statement”), and shall use its reasonable best efforts to cause any such Demand Registration Statement to be declared effective by the Commission as soon promptly as reasonably practicable thereafterafter the filing thereof. The Any request for a Demand Registration will specify the number of shares of Registrable Securities proposed to be sold in the offering thereof; provided that the requesting Holder(s) may change the number of Registrable Securities proposed to be offered pursuant to any Demand Registration at any time prior to the Demand Registration Statement being declared effective by the Commission, in each case subject to the minimum size limitations in Section 2.5(a). Under no circumstances shall the Company shall not be required obligated to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Demand Registrations in any twelve (12)-month period. Any Demand Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 S-3ASR (or any successor form thereto. At such time as ) to the Company shall have qualified extent available for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure pursuant to SEC Guidance. The “Plan of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority Distribution” section of the Registrable Securities initiating such Demand Registration or Shelf Takedown Statement shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one permit all lawful means of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders disposition of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of including firm-commitment underwritten public offerings, Alternative Transactions and sales not involving a majority of the Registrable Securities initially requesting the public offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc)
Demand Registration. (ai) At the later to occur of (I) one year following the closing of any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority initial public offering of the Registrable Securities then outstanding Company=s securities, and (ii) that date upon which the Company is eligible to register the Warrant Shares for resale on a Form S-3, the Holder may deliver a written request (the "Notice") executed by the Holder and requesting registration under of the Securities Act resale by Holder of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”)the Purchased Shares. Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon As soon as practicable after receipt of any such requestthe Notice, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice at its sole cost and expense file a registration statement with the Commission on Form S-3 or any successor form, under the Securities Act, covering the issuance of such request the Warrant Shares issuable to all other holders the Holder upon exercise of Registrable Securities who shall then have five (5) days from the date such notice is given to notify Warrant or the Company in writing resale of their desire to be included in such registrationthe Warrant Shares issuable upon exercise of the Warrant by the Holder. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall will use its best efforts to cause have such Registration Statement to be registration statement declared effective by the Commission as soon as practicable possible thereafter, and shall keep such registration statement current and effective until such time as the Warrant Shares issuable upon exercise of the Warrant may be sold by the Holder at any time without restriction or pursuant to the provisions of Rule 144(k) of the Commission or until such earlier date as all of the Purchased Shares registered pursuant to such registration statement shall have been sold or otherwise transferred by the Holder to a third party. The Company shall also prepare and file with the Commission such amendments and supplements to such registration statement (and the prospectus used in connection therewith) as may be necessary to update and keep such registration statement (and the prospectus used in connection therewith) current and effective for such three-year period and to comply with the provisions of the Securities Act with respect to the sale of all securities covered by such registration statement.
ii) The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under registration pursuant to this Section 2(a11(a): (I) unless after the Company has effected one (1) registration pursuant to this Section 11(a), and until it has become effective and the holders requesting such registration are able to register has either (A) been declared or ordered effective or (B) the request for such registration has been subsequently withdrawn by the Holder (and sell such withdrawal is not based on materially adverse information concerning the Company of which the Holder was not reasonably aware at least a majority the time of such request); or (ii) if the Warrant Shares issuable upon exercise of the Registrable Securities requested Warrant may be sold by the Holder at any time without restriction or pursuant to be included in the provisions of Rule 144(k); or (iii) if Form S-3 (or a successor or similar form) is not available for such registration.
offering by the Holder; or (biv) After the Registration Date, if the Company shall use its best efforts furnish to qualify and remain qualified the Holder following receipt of his written request for registration, a certificate signed on behalf of the Board of Directors 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 register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified and its shareholders for such registration statement to be filed and it is therefore essential to defer the use filing of a Registration Statement on Form S-3 or any successor form theretosuch registration statement, in which event the holders of Registrable Securities Company shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request defer such filing for a Short-Form Registration shall specify the number period of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly not more than one hundred eighty (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30180) days after receipt of the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each Holder's request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Warrant Agreement (Cumetrix Data Systems Corp), Warrant Agreement (Cumetrix Data Systems Corp)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Lockup Expiration Date, holders the Holders of a majority at least 25% of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 S-11 or any successor form thereto (each, each a “Long-Form Registration”); provided that the anticipated aggregate price to the public of the Registrable Securities for which registration is requested must be at least $25 million. Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities Holders who shall then have five (5) ten days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission use reasonable best efforts to file, as soon as practicable, a Registration Statement on Form S-1 S-11 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60form) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities Holders as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective, and remains effective for the period required by this Agreement, and the holders Holders requesting such registration Registration Statement are able to register and sell at least a majority 75% of the Registrable Securities requested to be included in such registrationRegistration Statement; and, provided, further, that the Company shall not be required to effect a Long-Form Registration if the Company is, at the time the request for registration is made or within 30 days thereafter, eligible to effect a Short-Form Registration, as provided in Section 2(b).
(b) After the Registration Datean IPO, the Company shall use its reasonable best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or S-3, at any successor form theretotime after the Lockup Expiration Date, the holders of Registrable Securities Holders shall have the right right, in addition to the rights contained in Section 2(a), to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”); provided, however, that the Company shall not be obligated to effect any such Short-Form Registration (i) if the Holders propose to sell Registrable Securities on Form S-3 at an anticipated aggregate price to the public of less than $5 million; or (ii) if the Company has effected two Short-Form Registrations within the 12 month period immediately preceding the date of such request. Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities Holders who shall then have five (5) ten days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) 30 days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as . With respect to any Short-Form Registration, the Holders may request the Company shall have qualified for to effect a registration of the use of Registrable Securities under a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(di) The Company shall not be obligated to effect any Demand Registration within three (3) months after during the period that is 60 days before the Company’s good faith estimate of the date of filing of, and ending 180 days after, the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities Holders were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. Securities.
(ii) The Company may postpone for up to ninety (90) 60 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement if (a “Shelf Supplement”A) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) be materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that detrimental to the Company has and the Board concludes, as a bona fide business purpose for preserving as confidential; result, that it is essential to defer the filing or effectiveness of such Registration Statement at such time and (B) the Company furnishes to the Holders requesting the registration a certificate signed by the Chief Executive Officer of the Company and confirming such determination of the Board. The Company shall not delay a Demand Registration hereunder more than twice in any period of 12 consecutive months or less than 60 days after the termination of the prior delay period.
(iii) render At any time prior to the Company unable to comply with requirements under effective date of a Registration Statement for a Demand Registration, the Securities Act or Exchange Act; provided, that in such event the holders Holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to included therein may withdraw such request andby providing written notice of such withdrawal to the Company. A request, if such request for a Demand Registration is withdrawnso withdrawn by the Holders, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and permitted pursuant to Section 2(a) or Section 2(b), as applicable, unless (i) such withdrawal arose out of the fault of the Company (in which case the Company shall be obligated to pay all registration expenses in connection with such registration. The withdrawn request), (ii) there occurs an event or series of related events that has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company may delay a Demand Registration from that known to the requesting Holders at the time of their request or Shelf Takedown hereunder only once in any period (iii) the requesting Holders reimburse the Company for all registration expenses of 12 consecutive monthssuch withdrawn request incurred through the date of such withdrawal.
(ed) If the holders of the Registrable Securities Holders initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable SecuritiesHolders. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities Holders in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the Holders and holders of Registrable Parity Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common StockStock other than holders of Parity Securities) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities and Parity Securities proposed to be sold can be included in such offering, then the Registrable Securities and Parity Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities and Parity Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Clipper Realty Inc.)
Demand Registration. (a) At Upon receipt by the Company at any time beginning one hundred eighty (180) days after following the second anniversary of the Closing Date, holders Date of a majority written request from the Consultant for registration of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt resale of any such request, the Company shall promptly Registrable Shares (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datedefined herein), the Company shall use its best commercially reasonable efforts to qualify cause a registration statement to be filed under the Securities Act, and remain qualified any other applicable Laws, within 60 days after the receipt of such request. The Company shall use all commercially reasonable efforts to register cause any such registration statement to become effective and to maintain the offer effectiveness of such registration statement until (x) the date all Registrable Shares have been sold pursuant thereto or (y) 180 days after the effective date of such registration statement. The term "registration statement" means a registration statement filed under the Securities Act, or any similar disclosure document, filing, or listing particulars utilized in connection with a Public Equity Offering. "Registrable Shares" means shares of Stock owned by Consultant and his Affiliates on the date of this Agreement and all other shares of Stock acquired from time to time by the Consultant or his Affiliates and any securities issued or issuable with respect to any such shares of Stock by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, share exchange, merger, consolidation, reorganization, Business Combination, or otherwise. As to any particular Registrable Shares, such securities shall cease to be Registrable Shares when (i) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act pursuant to (or under the applicable Laws of the relevant jurisdiction) and such securities shall have been disposed of in accordance with the plan of distribution set forth in such registration statement, (ii) such securities shall have been distributed in accordance with Rule 144 of the Securities Act, or (iii) such securities shall have been otherwise transferred, new certificates therefor not bearing a Registration Statement on Form S-3 or any successor form thereto. At such time as legend restricting further transfer shall have been delivered in exchange therefor by the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice subsequent disposition of such request to all other holders of Registrable Securities who shares shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (not require registration or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 qualification under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafterapplicable Law.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Kevco Partners Investment Trust), Securities Purchase Agreement (Kevco Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Datedate of this Agreement, holders of a majority at least 25% of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their the Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five fifteen (515) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty thirty (6030) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a groupunder this Agreement; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority all of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the The Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under of the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five fifteen (515) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three ninety (390) months days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority twenty-five percent (25%) of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety sixty (9060) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, however, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 twelve (12) consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Registration Rights Agreement (Computer Vision Systems Laboratories Corp.), Registration Rights Agreement (Computer Vision Systems Laboratories Corp.)
Demand Registration. (a) At any time beginning one hundred eighty (180) after 180 days after the Closing Datedate issuance of the Series 1 Shares, holders of a majority of the Registrable Securities then outstanding may request registration under a Registration of at least 50% of the Securities Act of all or any portion of their outstanding Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Demand Registration”). Each request for a Long-Form Demand Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) 15 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) 15 days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationRegistration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration filed within sixty (60) 60 days after the date on which the initial request is given and shall use its best commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Demand Registration more than two (2) times once for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Demand Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registrationeffective.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months 180 days after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration (as defined below) in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority 50% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 90 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as the one of the permitted Demand Registrations Registration hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once twice in any period of 12 twelve consecutive months.
(ec) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(fd) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Registration Rights Agreement (Kingsway Financial Services Inc), Registration Rights Agreement (Kingsway Financial Services Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after If the Closing DateCompany receives a Demand Registration which is given in accordance with Section 11(f), holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly prepare and file with the SEC a Registration Statement (but in no event later than five (5a “Demand Registration Statement”) days following receipt thereof) deliver notice of such request to as directed by AcquisitionCo as either a Long Form Registration or a Short Form Registration covering all other holders of the Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationInterests for which registration has been requested by AcquisionCo. The Company shall prepare and (i) file with (or confidentially submit to) the Commission a SEC the Demand Registration Statement on Form S-1 or any successor form thereto covering all of prior to the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days 45th day after the date on which the initial request is given Company receives the Demand Registration, subject to extension of such period as provided for in the event of AcquisitionCo’s failure to timely provide information requested by the Company for use in the Demand Registration (the “Demand Registration Date”) and shall (ii) use its their best efforts to cause such Demand Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (possible but in no event later than five (5) the date that is 90 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five the Demand Registration Date (5) days from including filing with the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter.
(c) At such time as after the date that the Company shall have qualified for is notified (orally or in writing, whichever is earlier) by the use of a SEC that such Registration Statement on Form S-3 will not be “reviewed” or the then appropriate form will not be subject to further review, a request for an offering to be made on a delayed or continuous basis pursuant to acceleration of effectiveness in accordance with Rule 415 461 promulgated under the Securities Act to a date determined in consultation with the managing underwriters, if any, or any successor rule thereto AcquisitionCo (a an “Shelf Registration StatementAcceleration Request”), the holders of Registrable Securities shall have the right subject to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, delays as the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to reasonably determines may be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable necessary to comply with applicable requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive monthsrules and regulations thereunder.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Registration Rights Agreement (NGA Holdco, LLC), Registration Rights Agreement (NGA Holdco, LLC)
Demand Registration. (ai) At Subject to Sections 3.1(b) and 3.3, at any time beginning following the Restricted Period, the Stockholder shall have the right to require the Company to file one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of or more Registration Statements covering all or any portion part of their its Registrable Securities pursuant by delivering a written request therefor to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the Company specifying the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationregistration and the intended method of distribution therefor (a “Demand Registration Request”). The registration so requested is referred to herein as a “Demand Registration”. Any Demand Registration Request may request that the Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement register Registrable Securities on an appropriate form, including Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form registration, including a Shelf Registration Statement (as defined below) and, if the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) (a “WKSI”), an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) (an “Automatic Shelf Registration Statement”) (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request Demand Registrations will be Short-Form Registrations whenever the Company is permitted to use any applicable short form.
(ii) The Company, subject to Sections 3.3 and 3.6, shall include in a Demand Registration the Registrable Securities of the Stockholder.
(iii) The Company shall, subject to Section 3.1(b), use its commercially reasonable efforts to (x) no later than (A) thirty (30) days following receipt of a Demand Registration Request for a Short-Form Registration shall specify the number and (B) forty-five (45) days following receipt of Registrable Securities requested to be included in the a Demand Registration Request for a registration that is not a Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission SEC a Registration Statement on Form S-3 or any successor form thereto covering all for the registration under the Securities Act (including, without limitation, by means of a Shelf Registration Statement, as defined below, if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities that which the holders thereof have Company has been so requested to be included register, for distribution in accordance with such Short-Form Registration within thirty intended method of distribution, including a distribution to, and resale by, the members or partners of the Stockholder (30a “Partner Distribution”), (y) days after the date on which the initial request is given and shall use its best efforts to once filed, cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterfollowing the filing and (z) if requested by the Stockholder, obtain acceleration of the effective date of the Registration Statement relating to such registration.
(b) Notwithstanding anything to the contrary in Section 3.1(a), the Demand Registration rights granted in Section 3.1(a) are subject to the following limitations: (i) the Company shall not be required to effect more than six (6) total Demand Registrations and Third Party Stockholder Demand Registrations in the aggregate during the term of this Agreement nor more than two (2) Demand Registrations delivered pursuant to Section 3.1(a)(i) and Third Party Stockholder Demand Registrations delivered pursuant to Section 3.1(a)(i) of the Third Party Stockholder Agreement in the aggregate in any twelve (12)-month period from the Stockholder and the Third Party Stockholder (it being understood that a registration pursuant to a Piggyback Request (as defined below) by the Stockholder shall not constitute a Demand Registration for the purposes of this Section 3.1(b); (ii) each registration in respect of a Demand Registration Request made by the Stockholder must include, in the aggregate, net of underwriting discounts and commissions (based on the Common Stock included in such registration by all holders participating in such registration), shares of Common Stock having an aggregate market value of at least $125 million (or a lesser amount if the Registrable Securities requested by the Stockholder to be included in such Demand Registration constitute all of the Registrable Securities held by the Stockholder); and (iii) if the Board, in its good faith judgment, after consultation with outside counsel to the Company, determines that any registration of Registrable Securities should not be made or continued because it would require the Company to disclose material non-public information which, (A) would be required to be made in any report or Registration Statement filed with the SEC by the Company so that such report or Registration Statement would not be materially misleading, (B) would not be required to be made at such time but for the filing, effectiveness or continued use of such report or Registration Statement and (C) the Company disclosing publicly would adversely affect any financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or otherwise have a material adverse effect on the Company (in each case, a “Valid Business Reason”), then (x) the Company may postpone filing a Registration Statement relating to a Demand Registration Request until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than sixty (60) days after the date the Board determines a Valid Business Reason exists and (y) in case a Registration Statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may, to the extent determined in the good faith judgment of the Board to be reasonably necessary to avoid interference with any of the transactions described above, cause such Registration Statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such Registration Statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than sixty (60) days after the date the Board determines a Valid Business Reason exists (such period of postponement or withdrawal under this clause (iii), the “Postponement Period”). The Company shall give written notice of its determination to postpone or withdraw a Registration Statement and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, together with a certificate of such determination signed by the Chief Executive Officer or Chief Financial Officer of the Company, in each case, promptly after the occurrence thereof; provided, that the Company shall not be permitted to postpone or withdraw a Registration Statement for more than an aggregate of one hundred twenty (120) days in any twelve (12)-month period. If the Company shall give any notice of postponement or withdrawal of any Registration Statement pursuant to clause (b)(iii) above, the Company shall not, during the Postponement Period, register any Common Stock, other than pursuant to a Registration Statement on Form S-4 or S-8 (or an equivalent registration form then in effect). The Stockholder agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw, terminate or postpone amending or supplementing any Registration Statement pursuant to clause (b)(iii)(y) above, the Stockholder will discontinue its disposition of Registrable Securities pursuant to such Registration Statement. If the Company shall have withdrawn or prematurely terminated a Registration Statement filed under Section 3.1(a)(i) (whether pursuant to clause (b)(iii) above or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new Registration Statement covering the Registrable Securities covered by the withdrawn or terminated Registration Statement and such Registration Statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a Registration Statement, the Company shall, not later than five (5) Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than forty-five (45) days after the date of the postponement or withdrawal), use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed Registration Statement in accordance with this Section 3.1 (unless the Stockholder shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not be withdrawn or postponed pursuant to clause (b)(iii)(y) of this Section 3.1(b).
(c) At such time as In connection with any Demand Registration, the Company shall have qualified the right to designate the lead managing underwriter in connection with any underwritten offering pursuant to such registration and each other managing underwriter for any such underwritten offering; provided, that in each case, the use of Stockholder shall have the right to approve each such lead managing underwriter and each other managing underwriter, which approval shall not be unreasonably withheld or delayed.
(d) The obligation to effect a Demand Registration as described in this Section 3.1 shall be deemed satisfied only when a Registration Statement covering the applicable Registrable Securities shall have become effective (unless, after effectiveness, the Registration Statement becomes subject to any stop order, injunction or other order of the SEC or other governmental agency, in which case the obligation shall not be deemed satisfied) and, if the method of disposition is a firm commitment underwritten Public Offering, all such Registrable Securities have been sold pursuant thereto. Any request for a Demand Registration shall not count against the limitations on Form S-3 or the then appropriate form for an offering number of Demand Registrations required to be made effected set forth in Section 3.1(b) unless the obligation to effect such Demand Registration is deemed satisfied.
(e) The Company shall prepare, file with the SEC and use commercially reasonable efforts to have effective starting one hundred eighty (180) days from the Closing Date, to cause a Registration Statement for the sale or distribution by the Stockholder of all of the Registrable Securities held by the Stockholder on a delayed or continuous basis pursuant to Rule 415 of the Securities Act, including by way of an underwritten offering, block sale or other distribution plan (the “Resale Shelf Registration”), to be filed and declared effective under the Securities Act, and, if the Company is a WKSI at the time of such Resale Shelf Registration, to cause such Resale Shelf Registration to be an Automatic Shelf Registration Statement, and once effective, the Company shall cause the Resale Shelf Registration to remain effective (including by filing a new Resale Shelf Registration, if necessary) for a period ending on the earliest of (i) the date on which all Registrable Securities included in such registration have been sold or distributed pursuant to the Resale Shelf Registration, (ii) the date as of which there are no longer in existence any Registrable Securities covered by the Resale Shelf Registration and (iii) an earlier date agreed to in writing by the Company and the Stockholder. For the avoidance of doubt, nothing set forth herein shall require the Company to file the Resale Shelf Registration or to keep effective the Resale Shelf Registration at any time during which the Company is ineligible to use any applicable short-form registration; provided, that at such time, the Company shall use its reasonable best efforts to become and remain qualified to use Short-Form Registrations and, upon the request of the Stockholder pursuant to this Article III, the Company shall prepare and file with the SEC a Registration Statement or Registration Statements on such form that is available for the sale of the Registrable Securities that were to be otherwise sold or distributed under such Resale Shelf Registration; provided, that such request for a Demand Registration as a result of the Company being ineligible to use any applicable short-form registration shall not count against the limitations on the number of Demand Registrations required to be effected set forth in Section 3.1(b).
(f) In the event that the Company files a shelf Registration Statement under Rule 415 of the Securities Act whether pursuant to a Demand Registration Request or any successor rule thereto the Resale Shelf Registration and such registration becomes effective (such Registration Statement, a “Shelf Registration Statement”), the holders of Registrable Securities Stockholder shall have the right at any time or from time to request registration under the Securities Act of all or any portion of their time to elect to sell pursuant to an underwritten offering Registrable Securities available for an offering on a delayed or continuous basis sale pursuant to Rule 415 under such Registration Statement (“Shelf Registrable Securities”), so long as the Securities Act or any successor rule thereto Shelf Registration Statement remains in effect and only if the method of distribution set forth in the Shelf Registration Statement allows for sales pursuant to an underwritten offering. The Stockholder shall make such election by delivering to the Company a written request (a “Shelf RegistrationUnderwriting Request”) for such underwritten offering to the Company specifying the number of Shelf Registrable Securities that the Stockholder desires to sell pursuant to such underwritten offering (the “Shelf Underwriting”). Each request for As promptly as practicable, but no later than two (2) Business Days after receipt of a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such requestUnderwriting Request, the Company shall promptly give written notice (but the “Shelf Underwriting Notice”) of such Shelf Underwriting Request to the Third Party Stockholder. The Company, subject to Sections 3.3 and 3.6, shall include in no event later than five such Shelf Underwriting (5x) the Shelf Registrable Securities of the Stockholder and (y) the Shelf Registrable Securities of the Third Party Stockholder to the extent that the Third Party Stockholder shall have made a written request to the Company for inclusion in such Shelf Underwriting (which request shall specify the maximum number of Shelf Registrable Securities intended to be disposed of by the Third Party Stockholder) pursuant to a Shelf Underwriting Notice within seven (7) days following after the receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five notice. The Company shall, as expeditiously as possible (5and in any event within twenty (20) days after the receipt of a Shelf Underwriting Request), but subject to Section 3.1(b), use its reasonable best efforts to facilitate such Shelf Underwriting. Notwithstanding the foregoing, if the Stockholder wishes to engage in a Block Trade off of a Shelf Registration Statement (either through filing an Automatic Shelf Registration Statement or through a take-down from an already existing Shelf Registration Statement), then notwithstanding the date such notice is given foregoing time periods, (A) the Stockholder needs to notify the Company in writing of their desire the Block Trade Shelf Underwriting no later than 2:00 p.m. Eastern time on the Business Day prior to be included in the day such registration. The offering is to commence, (B) the Company shall prepare and file with notify the Third Party Stockholder no later than 10:00 a.m. Eastern time on the day such offering is to commence, (or confidentially submit toC) the Commission a Shelf Registration Statement covering all of Third Party Stockholder must elect whether or not to participate no later than 1:00 p.m. Eastern time on the Registrable Securities that day such offering is to commence and (D) the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and Company shall as expeditiously as possible use its reasonable best efforts (including co-operating with the Third Party Stockholder with respect to cause the provision of necessary information) to facilitate such Shelf Registration Statement to be declared effective by the Commission shelf offering (which may close as soon early as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months Business Days after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Actit commences); provided, that the Stockholder shall use commercially reasonable efforts to work with the Company and the underwriters prior to making such request in such event the holders of a majority order to facilitate preparation of the Registrable Securities initiating such Demand Registration or Shelf Takedown Statement, Prospectus and other offering documentation related to the Block Trade. For the avoidance of doubt, any party holding Additional Piggyback Rights (as defined below), other than the Third Party Stockholder, shall not be entitled to withdraw such request andreceive notice of, if such request for or to elect to participate in, a Demand Block Trade or any Shelf Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses Statement or Prospectus to be used in connection with such registrationBlock Trade. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If shall, at the holders request of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offeringStockholder, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Prospectus supplement or, if the applicable Shelf Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any is an Automatic Shelf Registration Statement on Form S-8.Statem
Appears in 2 contracts
Sources: Stockholders’ Agreement (INC Research Holdings, Inc.), Stockholders' Agreement (INC Research Holdings, Inc.)
Demand Registration. (a) At 2.1 Registration Other Than on Form F-3 or Form S-3. Subject to the terms of this Agreement, at any time beginning one hundred eighty or from time to time after the date that is six (1806) months after the closing of the IPO, Holders holding twenty-five percent (25%) or more of the voting power of the then issued and outstanding Registrable Securities held by all Holders may request in writing that the Company effect a Registration on any internationally recognized exchange that is reasonably acceptable to such requesting Holders. Upon receipt of such a request, the Company shall (x) promptly give written notice of the proposed Registration to all other Holders and (y) as soon as practicable, use its commercially reasonable efforts to cause the Registrable Securities specified in the request, together with any Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Closing DateCompany’s delivery of written notice, holders of a majority of to be Registered and/or qualified for sale and distribution in such jurisdiction as the Initiating Holders may request. The Company shall be obligated to consummate no more than three (3) Registrations pursuant to this Section 2.1 that have been declared and ordered effective; provided that if the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested sought to be included in the Long-Form Registration. Upon receipt Registration pursuant to this Section 2.1 are not fully included in the Registration for any reason other than solely due to the action or inaction of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Holders including Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company Registration, such Registration shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all not be deemed to constitute one of the Registrable Securities that the holders thereof have requested Registration rights granted pursuant to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterthis Section 2.1. The Company shall not be required obligated to take any action to effect a Long-Form any Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under pursuant to this Section 2(a) 2.1 unless the aggregate proceeds from the offering that is the subject of the Registration exceeds US$50,000,000 and until it has become effective and the holders requesting such registration are able to register and sell at least a majority 10% of the Registrable Securities requested to be included then issued and outstanding shall participate in such registrationRegistration.
(b) After the 2.2 Registration Date, the on Form F-3 or Form S-3. The Company shall use its best commercially reasonable efforts to qualify for registration on Form F-3 or Form S-3. Subject to the terms of this Agreement, if the Company qualifies for registration on Form F-3 or Form S-3 (or any comparable form for Registration in a jurisdiction other than the United States), Holders holding 10% or more of the voting power of the then issued and remain qualified outstanding Registrable Securities held by all Holders may request the Company in writing to register file, in any jurisdiction in which the offer and sale of securities under the Securities Act pursuant to Company has had a registered underwritten public offering, a Registration Statement on Form F-3 or Form S-3 (or any successor comparable form thereto. At such time as for Registration in a jurisdiction other than the Company shall have qualified for the use of a Registration Statement on Form S-3 or United States), including without limitation any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations registration statement filed under the Securities Act of all providing for the registration of, and the sale on a continuous or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (eachdelayed basis by the Holders of, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or and/or any successor similar rule thereto (that may be adopted by the Commission. Upon receipt of such a “Shelf Registration Statement”)request, the holders Company shall (i) promptly give written notice of the proposed Registration to all other Holders and (ii) as soon as practicable, use its commercially reasonable efforts to cause the Registrable Securities shall have specified in the right to request registration under the Securities Act of all or request, together with any portion of their Registrable Securities of any Holder who requests in writing to join such Registration within fifteen (15) days after the Company’s delivery of written notice, to be Registered and qualified for an offering on a delayed or continuous basis sale and distribution in such jurisdiction. The Company shall be obligated to consummate no more than two (2) Registrations that have been declared and ordered effective within any twelve (12)-month period pursuant to Rule 415 under this Section 2.2; provided that if the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested sought to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request Registration pursuant to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be this Section 2.2 are not fully included in such registration. The Company shall prepare and file with (Registration for any reason other than solely due to the action or confidentially submit to) the Commission a Shelf Registration Statement covering all inaction of the Holders including Registrable Securities that the holders thereof have requested to be included in such Shelf Registration, such Registration within ten (10) days after shall not be deemed to constitute one of the date on which the initial request is given and shall use its best efforts Registration rights granted pursuant to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) this Section 2.2. The Company shall not be obligated to take any action to effect any Demand Registration within three (3) months after pursuant to this Section 2.2 unless the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register aggregate proceeds from the offer and sale under offering that is the Securities Act, and actually sold, at least a majority subject of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive monthsexceeds US$50,000,000.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Shareholder Agreements (Belite Bio, Inc), Shareholder Agreements (Belite Bio, Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date[October 5, 2020], holders of a majority at least ten (10) percent of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration DatePublic Offering, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, but in any event no earlier than October 6, 2020, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.. EXHIBIT F
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), but in any event no earlier than October 6, 2020, the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 twelve (12) consecutive months.. EXHIBIT F
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Securities Purchase Agreement (P10, Inc.), Securities Purchase Agreement (P10, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty ninety (18090) days after the Closing Dateclosing of the Offering, the holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all of the Registrable Securities that are not then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 or any portion other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Holders of their all of the Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Demand Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five twenty (520) calendar days following after receipt thereofof such request) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (5) 10 calendar days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit toi) use its commercially reasonable efforts to make the Commission a initial filing of the Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty ninety (6090) calendar days after the date on which the initial request is given and shall given] (ii) use its best commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter, and (iii) use its commercially reasonable efforts to keep such Registration Statement effective until the date on which all securities under such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). The Registration Statement filed hereunder shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) that “Plan of Distribution” in substantially the form attached hereto as Annex A. Notwithstanding the foregoing, in the event that the staff (the “Staff”) of the Commission should limit the number of Registrable Securities that may be sold pursuant to the Registration Statement, the Company may remove from the Registration Statement such number of Registrable Securities as specified by the Commission on behalf of all of the holders of Registrable Securities on a pro rata basis among the holders thereof. In such event, the Company shall give the Purchasers prompt notice of the number of Registrable Securities excluded therefrom. The Company shall not be required to effect a Long-registration pursuant to Form Registration S-3 (or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the resale by the Holders of all of the Registrable Securities) more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Registration Rights Agreement (Avinger Inc), Registration Rights Agreement (Avinger Inc)
Demand Registration. (a) At Subject to the conditions set forth in this Agreement, while any time beginning one hundred eighty (180) days after Registrable Shares are outstanding, the Closing DateCompany, holders of a majority of upon the Registrable Securities then outstanding may written request for the registration under the Securities Act of all or of the Registrable Shares of any portion of their Holder who, for any reason, is unable, at the time that such Holder makes the request, to sell its Registrable Securities Shares pursuant to Rule 144 under the Securities Act made more than 55 days following the date hereof shall (i) promptly give written notice of the proposed registration to all other Holders, and (ii) cause to be filed, in accordance with the terms hereof, as soon as practicable after the date of such request by such requesting Holder, a Registration Statement on Form S-1 or any successor form thereto S-3 under Rule 415 under the Securities Act relating to the sale by the Holder of all of the Registrable Shares held by such Holder (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file together with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included of any other Holder or Holders joining in such Long-Form Registration request as specified in a written request delivered by or on behalf of such other Holder or Holders within sixty (60) 15 calendar days after delivery of the date on which above-described notice from the initial request is given Company), and shall (iii) use its best efforts to cause such Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter. The Company shall not be required Company, in its sole discretion, may elect to effect a Long-Form Registration more than two (2) times for file the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able before receipt of notice from any Holder. The Company agrees to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified keep the Registration Statement continuously effective thereafter until the date on which each Holder whose Shares are covered by such Registration Statement becomes eligible to register the offer and sale sell any portion of securities such Holder's Registrable Shares pursuant to Rule 144 under the Securities Act Act. Notwithstanding the foregoing, the Company shall not be obligated, but shall have the right, to take any action to effect any such registration, qualification or compliance pursuant to this Section 2(a):
(i) in any particular jurisdiction in which either the Company or the Operating Partnership would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company or the Operating Partnership is already subject to service in such jurisdiction, and except as may be required by the Securities Act;
(ii) within four months immediately following the effective date of any Registration Statement pertaining to an underwritten public offering of securities of the Company for its own account;
(iii) if such Registration Statement cannot be filed on Form S-3 or any successor form thereto. At to such Form;
(iv) unless Holders with at least 25% of the aggregate number of Units issued to the Holders as of the date hereof submit a written request, in accordance with the procedures set forth above, for the Company to file a Registration Statement relating to all of such Holders' Registrable Shares;
(v) after the expiration of two years from the date hereof; after a total of two such registrations pursuant to this Section 2(a) have become effective, and the Registration Statements relating to such registrations either have remained effective for an aggregate period of at least 180 days or the Registrable Shares covered by such Registration Statements have been sold; or
(vi) at any time as prior to 90 days following the date hereof, unless the Company shall have qualified for received written requests (pursuant to the use terms of this Section 2(a)) from Holders owning at least 25% of the aggregate number of Units issued to the Holders as of the date hereof, requesting the Company to file a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request relating to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that will be issuable to such Holders upon the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein exercise by any other Persons (including shares of Common Stock to be sold for the account such Holders of the Company and/or other holders of Common Stock) allocated among Exchange Rights that will become available to such Persons in such manner as they may agree. If Holders commencing 90 days after the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offeringdate hereof, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8have received such written requests no later than 55 days following the date hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Crescent Real Estate Equities Inc), Registration Rights Agreement (Crescent Real Estate Equities Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after Commencing on the Closing Date, holders of a majority date that all Investors collectively Beneficially Own at least 13% of the Registrable Securities then issued and outstanding shares of Common Stock, and continuing until the termination of this Agreement (notwithstanding any subsequent reduction in the collective Beneficial Ownership of all Investors to less than 13%), the Investors may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 S-3 or any successor form thereto (each, a “Long-Form Demand Registration”). Each request for a Long-Form Demand Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationregistered. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty (60) 30 days after the date on which the initial request for a Demand Registration is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Demand Registration more than two (2) times one time for the holders of Registrable Securities Investors as a group; .
(b) The Company shall prepare and file with the Commission such amendments, post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection with such Demand Registration as may be necessary to keep such Registration Statement effective until all of such Registrable Securities have been disposed of (provided, however, that a the Company shall not be required to keep such Registration Statement effective for a period of more than 180 days after the date that such Registration Statement becomes effective, provided that such 180 day period shall not toll during any Suspension Period) and comply with the provisions of the Securities Act with respect to the disposition of such Registrable Securities in accordance with the intended methods of disposition set forth in such Registration Statement.
(c) A registration will not count as a Long-Form Demand Registration requested under this Section 2(a(i) unless the related Registration Statement has been declared effective and has remained effective until such time as all of such Registrable Securities covered thereby have been disposed of in accordance with the intended methods of disposition by the Investors (but in no event for a period of more than 180 days after such Registration Statement becomes effective, provided that such 180 day period shall not toll during any Suspension Period); it being understood that if, after it has become effective and effective, an offering of Registrable Securities pursuant to a Registration Statement is terminated by any stop order, injunction, or other order of the holders requesting Commission or other governmental agency or court, such registration pursuant thereto will be deemed not to have been effected and will not count as a Demand Registration for purposes of Section 2(a), or (ii) if pursuant to Section 2(f) hereof, the Investors are able cut back to register and sell at least a majority fewer than 75% of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafterregistered.
(d) The Company shall not be obligated to effect any a Demand Registration within three (3) months 90 days after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority 50% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other . The holders of a majority of the Registrable Securities. The Company Securities requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(f) The Company shall not include in any the Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting included in such Demand Registration or Shelf Takedownregistration. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds would adversely affect the price per share of the Registrable Securities proposed to be sold in such underwritten offering, then the Company will be obligated to include in such registration only that number of shares of Common Stock which can which, in the judgment of the managing underwriter, would not adversely affect the price per share of the Common Stock to be sold in such underwritten offering and/or offering. In the case of any such reduction in the number of shares of Common Stock proposed to be included in any such Demand Registration or Shelf Takedown would adversely affect registration, the price per share shares of the Common Stock proposed to be sold included in such underwritten offering, the Company registration shall include in such Demand Registration or Shelf Takedown be allocated as follows: (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderholder or in such other manner as they may otherwise agree.
(g) Upon receipt of any The Investors shall have the right to cancel a proposed Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by pursuant to this Section 2:
(i) when the applicable request for cancellation is based upon material adverse information relating to the Company that is different from the information known to any member of the MHR Group at the time of the request pursuant to Section 2(a), or
(ii) if the Company effects a Company Registration during the Investor Registration Period relating to such proposed Demand Registration; provided that the Company . Any cancellation of a registration pursuant to this Section 2(g) shall not be permitted to file any Registration Statement on Form S-8counted as a Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Key Energy Services Inc), Registration Rights Agreement (MHR Fund Management LLC)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing DateNovember 1, 2022, holders of a majority at least ten (10) percent of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Long- Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration DatePublic Offering, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, but in any event no earlier than November 1, 2022, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), but in any event no earlier than November 1, 2022, the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 twelve (12) consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Class A Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Class A Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Class A Common Stock which can be sold in such underwritten offering and/or the number of shares of Class A Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Class A Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Class A Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Class A Common Stock proposed to be included therein by any other Persons (including shares of Class A Common Stock to be sold for the account of the Company and/or other holders of Class A Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Stockholders Agreement (P10, Inc.), Stockholders Agreement (P10, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days As soon as possible after the Closing Datedate hereof, holders the Company shall file a Registration Statement with the SEC covering the resale of a majority all of the Registrable Securities. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. In the event that the Company is unable to register for resale under Rule 415 all of the Registrable Securities on the Registration Statement that it has agreed to file pursuant to Section 2(a) due to limits imposed by the SEC?s interpretation of Rule 415, then outstanding may request registration under the Securities Act of all or any Company shall be obligated to include in such Registration Statement (as withdrawn and refiled if necessary to comply with Rule 415) only such limited portion of their the Registrable Securities pursuant as the SEC shall permit. Any exclusion of Registrable Securities shall be made pro rata among the Holders in proportion to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in held by such Holders. Any request for acceleration of the Long-Form RegistrationRegistration Statement shall seek effectiveness at 5:00 p.m., New York time, or as soon thereafter as practicable. Upon receipt of any such request, the The Company shall notify the Holders by facsimile or e-mail as soon as promptly practicable, and in any event, prior to 9:00 a.m., New York time, on the day after any Registration Statement is declared effective, shall file with the SEC under Rule 424 a final prospectus as promptly as practicable, and in any event, prior to 9:00 a.m., New York time, on the day after any Registration Statement is declared effective.
(b) The Company shall prepare, and, as soon as practicable but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and Additional Filing Deadline, file with (or confidentially submit to) the Commission a SEC an Additional Registration Statement on Form S-1 (or any successor form thereto Form S-3, if applicable) covering the resale of all of the Registrable Securities that not previously registered in a Registration Statement or a preceding Additional Registration Statement as the holders thereof have requested case may be. To the extent the SEC does not permit the aforesaid Registrable Securities to be included in registered on an Additional Registration Statement, the Company shall file Additional Registration Statements successively trying to register on each such Long-Form Additional Registration within sixty (60) days after Statement the date on which maximum number of remaining Registrable Securities until the initial request is given and resale of the remaining Registrable Securities have been registered with the SEC. The Company shall use its best commercially reasonable efforts to cause such have each Additional Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; providedpracticable, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than the Additional Effectiveness Deadline. By 9:00 a.m. New York time on the business day following the Additional Effective Date, the Company shall file with the SEC in accordance with Rule 424 the final prospectus to be used in connection with sales pursuant to such Additional Registration Statement.
(c) If a Registration Statement or Additional Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline or Additional Filing Deadline, respectively, the Company will make pro rata payments to each Holder, as liquidated damages and not as a penalty, in an aggregate amount equal to 2% of the Fully Diluted Shares Outstanding for each 30-day period or pro rata for any portion thereof following the Filing Deadline or Additional Filing Deadline for which no Registration Statement or Additional Registration Statement, as the case may be, is filed with respect to the Registrable Securities. If a Registration Statement or Additional Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) business days after the SEC shall have informed the Company that there will be no further comments on the Registration Statement, or the Additional Registration Statement, as the case may be, (ii) the Effective Deadline or (iii) an Additional Effectiveness Deadline (either (i), (ii) or (iii) shall be deemed the ?Effectiveness Deadline?), the Company will make pro rata payments to each Holder, as liquidated damages and not as a penalty, in an aggregate amount equal to 2% of the Fully Diluted Shares Outstanding for each 30-day period or pro rata for any portion thereof following receipt thereof) deliver notice the Effectiveness Deadline for which no Registration Statement is declared effective with respect to the Registrable Securities; provided, however, that no such damages shall apply to the extent the delay is caused by any act or omission of the Holder in furnishing information needed to register the shares. Such issuance shall constitute the Holders exclusive remedy for such request events, but shall not affect the right of the Holders to all other holders seek injunctive relief. Such issuance shall be made to each Holder via delivery of Registrable Securities who shall then have a Common Stock certificate within five (5) business days from of such event.
(d) Notwithstanding the date such notice is given to notify provisions of this Section 2.1, in no event shall the Company be liable for liquidated damages in writing of their desire the event that the Company is unable to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering register for resale all of the Registrable Securities on the Registration Statement that it has agreed to file pursuant to Section 2(a) due to limits imposed by the holders thereof have requested to be included SEC?s interpretation of Rule 415 provided, however, in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such requestevent, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice timely file and obtain effectiveness of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf an Additional Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure provisions of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Registration Rights Agreement (AMBER Ready, Inc), Registration Rights Agreement (AMBER Ready, Inc)
Demand Registration. (a) At any time, and from time beginning one hundred eighty (180) days to time, after the six month anniversary of the Closing Date, holders of a majority of the Registrable Securities then then-outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities Stockholder Shares shall have the right to request an require the Company to effect unlimited number of registrations on Form S-3, or any successor form then in effect, under the Securities Act of all or (any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below)such registration, a “Demand Registration”). Each Upon receipt from a Stockholder or Stockholders (the “Initiating Stockholders”) of any request for a Short-Form Demand Registration shall specify for Common Stock having a market value of not less than $25,000,000, based on the number closing price of Registrable Securities requested the Common Stock at 4:00 p.m. on the business day prior to be included in the Short-Form Registration. Upon receipt day of any such the request, the Company shall promptly give prompt (but in no any event not later than five two (52) business days following after receipt thereofof such request) deliver written notice of such request to each Stockholder, and shall include in such Demand Registration all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given Stockholder Shares with respect to notify which the Company in writing has received written requests for inclusion therein within 30 days after the delivery of their desire to be included in such registrationthe Company’s notice. The Company shall prepare use its commercially reasonable efforts to file the registration statement with regard to such Demand Registration with the Securities and file with Exchange Commission within sixty (60) days after it receives a request therefor, and to cause such registration statement to become effective as soon as practicable thereafter. If requested by the Initiating Stockholders, the Company shall take steps as are required to register such Stockholder Shares in such Demand Registration for sale on a continuous basis under Rule 415 under the Securities Act and keep such registration statement (or confidentially submit to) any replacement registration statement effected upon the Commission a Registration Statement on Form S-3 expiration of the initial or any successor form thereto covering subsequent registration statement) effective for such period as is necessary to complete the sale and distribution of all of the Registrable Securities Stockholder Shares pursuant thereto, but in any event not longer than one hundred twenty (120) days. No later than the effective date of the Demand Registration, the Company shall furnish (or cause to be furnished) to the Company’s transfer agent, from time to time, an opinion of the Company’s counsel to facilitate the transfer of the Stockholder Shares in the secondary market, including, but not limited to, the removal of any restrictive legends encumbering such shares. If other securities are included in any Demand Registration that is an underwritten offering, and the holders thereof have managing underwriter for such offering advises the Company that in its opinion the number of securities to be included exceeds the number of securities which can be sold in such offering without adversely affecting the marketability or price thereof, the Company will include in such registration all Stockholder Shares requested to be included therein prior to the inclusion of any securities that are not Stockholder Shares. If the number of Stockholder Shares requested to be included in such Short-Form Registration within thirty (30) days after registration exceeds the date on number of securities which in the initial request is given and opinion of such underwriter can be sold without adversely affecting the marketability of such offering, such Stockholder Shares shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), included pro rata among the holders thereof based on the percentage of Registrable Securities the outstanding Stockholder Shares then held by each such Stockholder. If other securities are included in any Demand Registration that is not an underwritten offering, all Stockholder Shares included in such Demand Registration shall be sold prior to the sale of any of such other securities. The Company shall have the right to request registration under select the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant investment banker(s) and manager(s) to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect administer any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice subject to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent approval of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed Stockholder Shares to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderRegistration.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Stockholders' Agreement (BioScrip, Inc.), Merger Agreement (BioScrip, Inc.)
Demand Registration. (a) At If at any time beginning one hundred eighty during the Eligible Period the Stockholder requests in writing (180the “Stockholder Demand”) days after that the Closing Date, holders of Company file a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement statement on Form S-1 S-3 (or any successor form thereto (each, a “Long-to Form Registration”). Each request S-3) for a Longpublic offering of shares of the Registrable Shares the Company shall, subject to Section 2.4, file such Registration Statement with the SEC within forty-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon five (45) days after its receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon thereafter as practicable thereafterand keep such registration statement effective until the Stockholder notifies the Company in writing that the Company is no longer required to keep such Registration Statement effective. The In no event, however, shall the Company shall not be required to (i) effect a Long-Form Registration more than two (2) times registrations pursuant to this section or (ii) keep one or more registration statements filed pursuant to this section effective for more than an aggregate of one hundred twenty (120) days. In the holders event the registration is proposed to be part of Registrable Securities as a group; providedfirm commitment underwritten public offering, that a Registration Statement the substantive provisions of Section 2.3 shall not count as a Long-Form Registration requested be applicable to each such registration initiated under this Section 2(a) unless and until it has become effective 2.1 and the holders requesting such piggyback registration are able rights of Stockholder shall be applicable to register and sell at least a majority of the Registrable Securities requested registration effected pursuant to be included in such registrationthis Section 2.1.
(b) After Notwithstanding the Registration Dateforegoing, the Company shall use its best efforts not be obligated to qualify and remain qualified to register the offer and sale of securities under the Securities Act take any action pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement subparagraph (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.a):
(ci) At such time as if the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”)Company, the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days of the receipt of the Stockholder Demand, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within sixty (60) days of receipt of such demand (other than a registration relating primarily to the sale of securities to participants in a Company stock plan or employee benefit plan, a transaction covered by Rule 145 under the Securities Act or the resale of securities issued in such a transaction, a registration in which the only stock being registered is Common Stock issuable upon conversion or exchange of debt securities which are also being registered, or any registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Shares); provided, however, that if such registration statement is not filed by the Company within 60 days of receipt of such Stockholder Demand and declared effective by the SEC within 120 days after the date on which Company’s receipt of such Stockholder Demand, the initial request Company shall be obligated to cause such Registrable Shares of the Stockholder to be registered in accordance with the provisions of this Section 2.1 provided that the Company is given and shall use its best actively employing in good faith all reasonable efforts to cause such Shelf Registration Statement registration statement to be declared effective by the Commission as soon as practicable thereafter.become effective; or
(dii) The Company shall not be obligated to effect any Demand Registration within three (3) months after during the effective period starting with the Company’s date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actfiling of, and actually sold, at least a majority of ending on the shares of Registrable Securities requested to be included therein. The Company may postpone for up to date ninety (90) days immediately following, the filing effective date of any registration statement pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or effectiveness of a Registration Statement for a Demand Registration with respect to an offering solely to employees or a supplement (a “Shelf Supplement”) consultants, or any other registration which is not appropriate for the purpose registration of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (Registrable Shares), which registration was either filed as a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority result of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one exercise by Stockholder of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made its rights pursuant to Section 2(a), 2.1 hereof or was subject to Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering2.2 hereof.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 2 contracts
Sources: Investor Rights Agreement (Digital River Inc /De), Investor Rights Agreement (Intraware Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority first anniversary of the Registrable Securities then outstanding IPO, the Investor may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement held by it or its Affiliates on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) business days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) business days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty (60) 90 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datefirst anniversary of the IPO, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities Investor shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) business days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) business days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) 45 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) six months after (i) the effective date of a previous Demand Registration, Shelf Takedown Registration Statement or (ii) a previous Piggyback Registration in registration under which the holders of the Registrable Securities had piggy-back rights pursuant to Section 3 hereof wherein the holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority 50% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 45 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 twelve consecutive months.
(ed) If the holders of the Registrable Securities initially Investor requesting a Demand Registration or Shelf Takedown elect elects to distribute the Registrable Securities covered by their its request in an underwritten offering, they it shall so advise the Company as a part of their its request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company Investor shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which that are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration Investor, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated for the purposes of this clause (ii) among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Ares Commercial Real Estate Corp)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Dateearlier of the Registration Date or 24 month after the date of this Agreement, holders of a majority the holder of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders holder thereof have requested to be included in such Long-Form Registration within sixty (60) 90 days after the date on which the initial request is given and shall use its best reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) 2 times for the holders holder of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registrationSecurities.
(b) After the Registration Date, the Company shall use its best reasonable efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders holder of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders holder thereof have requested to be included in such Short-Form Registration within thirty (30) 60 days after the date on which the initial request is given and shall use its best reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time As soon as practicable after the Registration Date, the Company shall have qualified for (i) prepare and file with (or confidentially submit to) the use of Commission a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of ) that covers all Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities then outstanding for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly ) and (but in no event later than five (5ii) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter. If, after the filing of a Shelf Registration Statement, a holder of Registrable Securities demands registration under the Securities Act of additional Registrable Securities pursuant to such Shelf Registration, the Company shall amend such Shelf Registration Statement to cover such additional Registrable Securities.
(d) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) months 180 days after the effective date of a previous Demand RegistrationLong-Form Registration or Shelf Takedown, Shelf Takedown or a previous Piggyback Registration in which holders the holder of Registrable Securities were was permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 180 days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a Shelf Supplement for a Shelf Takedown/a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority holder of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders holder of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securitiesor Section 2(d). The Company holder of the Registrable Securities initially requesting the Demand Registration or Shelf Takedown shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of holder the Registrable Securities initially requesting such Demand Registration Securities, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders holder of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock Ordinary Shares proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock Ordinary Shares proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock Ordinary Shares which can be sold in such underwritten offering and/or the number of shares of Common Stock Ordinary Shares proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock Ordinary Shares proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock Ordinary Shares that the holders holder of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock Ordinary Shares proposed to be included therein by any other Persons (including shares of Common Stock Ordinary Shares to be sold for the account of the Company and/or other holders holder of Common StockOrdinary Shares) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders holder thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At If Holdings shall receive at any time beginning one hundred eighty (180) days after the Closing Date, holders earlier of a majority (i) the Stockholder Approval Date or (ii) the six-month anniversary of the Closing Date (such date, the “Registration Date”), a written request from any holder of outstanding Registrable Securities then outstanding may request requesting that Holdings file a registration statement under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify covering the number registration of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt (a “Demand”), then Holdings shall, within 10 days of any receiving such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver give written notice of such request to all other holders of outstanding Registrable Securities who shall then have five Holders and shall, as soon as reasonably practicable (5) but in any event within 60 days from of the date of such notice is given to notify holder’s request) file a registration statement under the Company in writing of their desire Securities Act covering all Registrable Securities which such holder requests to be included registered, together with all or such portion of the Registrable Securities of any other holders joining in such registration. The Company request as are specified in a written request given within 20 days after receipt of such written notice from Holdings; provided, however, that, subject to Section 2(b), the holders of outstanding Registrable Securities may only request one registration pursuant to this Section 2(a) during each one-year period subsequent to the Registration Date.
(b) A registration statement shall prepare and file with not be counted as a registration under this Section 2 (or confidentially submit toi) the Commission if Holdings includes any shares in such registration (in which case it shall be treated as a Registration Statement on Form S-1 or any successor form thereto covering registration pursuant to Section 3 hereof), unless such registration includes all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the outstanding Registrable Securities requested to be included in such registration.
; and (bii) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At until such time as the Company shall have qualified for registration statement has been declared effective by the use of a Registration Statement on Form S-3 or any successor form thereto, SEC and the holders requesting to be included in such registration statement are able to sell at least 50% of Registrable Securities shall have the right to request an unlimited total number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Registered Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterregistration statement.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the outstanding Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect intend to distribute the Registrable Securities covered by their request in under this Section 2 by means of an underwritten offeringunderwriting, they shall so advise the Company Holdings as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company Holdings shall include such information in its the written notice referred to the other holders of Registrable Securitiesin subsection 2(a). The Company shall select underwriter will be selected by the investment banking firm or firms to act as the managing underwriter or underwriters in connection with holder who initiated such offeringrequest, which underwriter must shall be reasonably acceptable to Holdings. In such event, the holders right of any holder to include his Registrable Securities in such registration shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. Holdings and all holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.
(d) Notwithstanding anything in this Agreement to the contrary, the Company shall not be required to file a Registration Statement for Registrable Securities pursuant to this Section 2 during the pendency of any Blackout Period or if the Registrable Securities initially requesting are the offeringsubject of an effective Shelf Registration.
(fe) The Company shall not include in be permitted to satisfy its obligations under this Section 2 by amending (to the extent permitted by applicable law) any Demand Shelf Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises previously filed by the Company and under the holders Securities Act so that such Shelf Registration (as amended) shall permit the disposition (in accordance with the intended methods of Registrable Securities in writing that in its reasonable and good faith opinion the number disposition specified as aforesaid) of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then for which a demand shall have been made under this Section 2. Notwithstanding the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registrationforegoing, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted have no obligation under this Agreement to file any Registration Statement on Form S-8Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Lee Samuel Sang-Bum)
Demand Registration. (a) At If at any time beginning one hundred eighty (180) days after the Closing DateAugust 12, 1999, holders of a majority at least 20% of the issued and outstanding Registrable Securities then outstanding may request Shares who are entitled to registration rights under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration this Section 6.02 shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire that it or they intend to offer or cause to be included in offered for public sale Registrable Shares held by such registration. The Company shall prepare and file with holders which shares constitute at least twenty percent (or confidentially submit to20%) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the then outstanding Registrable Securities that Shares, then the Company will so notify all holders thereof have requested to be included in such Long-Form Registration of Registrable Shares. Upon written request of any holder given within sixty twenty (6020) days after the date on which receipt by such holder from the initial request is given and shall Company of such notification, the Company will use its best efforts to cause such Registration Statement of the Registrable Shares as may be requested by any holder thereof (including the holder or holders giving the initial notice of intent to offer) to be declared effective registered under the Securities Act as expeditiously as possible; PROVIDED, HOWEVER, that the Company shall not be obligated to request acceleration of the effectiveness of such registration statement prior to November 13, 1999. If the method of distribution of the Registrable Shares by the holders thereof shall be an underwritten public offering, the majority of the holders of the Registrable Shares to be so registered may designate the managing underwriter of such offering subject to the approval of the Company, which approval shall not be unreasonably withheld. The Company shall not be required to file a registration statement with the Commission as soon as practicable thereafterpursuant to this Section 6.02 at any time while another registration statement (other than on Form S-3 or S-8) of the Company has been filed with the Commission and is not yet effective or within 90 days after the effective date of another registration statement (other than on Form S-3 or S-8) filed by the Company with the Commission. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders one registration during any 180 day period pursuant to this Section 6.02. In connection with any request by any holder of Registrable Securities as for registration thereof pursuant to this Section, the Company shall have the right to defer the filing of a group; provided, that a Registration Statement registration statement with the Commission for up to 30 days after such filing would otherwise be required hereunder if the Company shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and furnish to the holders requesting such registration are able to register and sell at least a majority certificate approved by the Board of Directors stating that, in the good faith judgment of the Registrable Securities requested Company, it would be detrimental to the interests of the Company for such registration statement to be included in filed at such registrationtime.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without registration statement referred to in this Section 6.02, for sale in accordance with the prior written consent method of disposition specified by the holders of a majority of the Registrable Securities initially holder requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed registration pursuant to be included in the Demand Registration or Shelf Takedown6.02(a), including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of by other selling stockholders or by the Company and/or other holders for its own account, except as and to the extent that, in the opinion of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Registrable Securities proposed Shares to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holdersold.
(gc) Upon receipt The Purchaser, and each subsequent holder of Registrable Shares, if any, agrees that if the Company determines that there are material developments which the Company reasonably determines, based on advice of counsel, require the filing of a post-effective amendment to the Registration Statement, then each holder of Registered Shares agrees to refrain from selling any Demand RegistrationRegistrable Shares until the post-effective amendment is declared effective. The Company agrees to file and attempt to have declared effective such post-effective amendment as soon as possible. Except as set forth in Section 6.10, the Company shall not file any other Registration Statement without the consent of the holders of be deemed to have effected a majority of the Registrable Securities requesting registration pursuant to this Section 6.02 unless and until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8such registration is declared effective.
Appears in 1 contract
Sources: Securities Purchase Agreement (Delicious Brands Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After Following the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use Holders of a Registration Statement on Form S-3 or any successor form thereto, the holders Majority of Registrable Securities shall have the right to request an unlimited number request, by delivery of registrations a written notice to the Company (a “Demand Notice”), that the Company file a registration statement under the Securities Act of (a “Demand Registration Statement”) covering all or any a portion of their the Registrable Securities pursuant to a Registration Statement on Form S-3 for the purpose of effecting an offering of such Registrable Securities, whether underwritten or any similar short-form Registration Statement otherwise (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”); provided, however, that no Initiating Holder shall be entitled to demand a Demand Registration Statement during the period when the Company is exercising its right to defer a Demand Registration pursuant to Section 2(b). Each Any such Demand Notice must request for a Short-Form Registration shall specify the number registration of Registrable Securities requested having an aggregate market value, based on the average per share closing price of the Common Stock as reported on the principal exchange or market on which it is then traded over the ten (10) consecutive trading days prior to the date of the Demand Notice, of not less than twenty-five million dollars ($25,000,000), or, if the registration statement will be included in the Short-on Form RegistrationS-3, not less than ten million dollars ($10,000,000). Upon receipt of any such requestSubject to Section 6(b)(i), the Company shall promptly (as soon as reasonably practicable, but in no event later than five sixty (560) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days if the registration statement will be a shelf registration statement on Form S-3) after receiving a Demand Notice, the date on which Company shall file with the initial request is given Commission a registration statement covering the Registrable Securities subject to the Demand Notice. Subject to Sections 2(b) and 4, the Company shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective as expeditiously as possible. Any registration under this Section 2 shall reflect such plan or method of distribution of the applicable securities as shall be declared effective designated by the Commission as soon as practicable thereafterInitiating Holder.
(b) Notwithstanding the provisions of Section 2(a), if the Company shall furnish to the Initiating Holder a certificate signed by the President and Chief Executive Officer of the Company stating that such officer has made a good faith determination that a registration would (i) require the disclosure of material nonpublic information concerning the Company, its business or prospects and that such premature disclosure would be materially adverse to the Company, and/or (ii) materially interfere with a pending transaction involving the Company or a subsidiary or affiliate of the Company, then the Company shall have the right to defer such filing or the effectiveness hereunder for a period ending not more than ninety (90) days after the Company’s receipt of the applicable Demand Notice, provided, that the Company may not exercise its right under this 2 Section 2(b) more than twice in any 24-month period; and provided further, that the Company may not exercise its rights under this Section 2(b) for two consecutive 90-day periods.
(c) At such time as Notwithstanding the Company shall have qualified for the use provisions of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”Section 2(a), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly not be obligated to (but in no event later than five (5i) days following receipt thereof) deliver notice of such request to all other holders file or effect a Demand Registration Statement for an underwritten offering of Registrable Securities who shall then have five (5an “Underwritten Demand Registration Statement”) days from the date such notice is given to notify the Company in writing within a period of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) 90 days after the effective date on which the initial request is given and shall use its best efforts to cause such Shelf of any other Underwritten Demand Registration Statement or an underwritten offering pursuant to be declared effective a Shelf Demand Registration Statement (as defined below) or (ii) file or effect more than a total of two Underwritten Demand Registration Statements within any 12-month period; provided, however, that each Shelf Demand Registration Statement filed during the applicable 12-month period will reduce by one the Commission as soon as practicable thereafternumber of Underwritten Demand Registration Statements the Company is obligated to file during such 12-month period.
(d) The Company shall not be obligated may elect to effect register in any underwritten Demand Registration within three (3) months after the effective date of a previous an “Underwritten Demand Registration”) any additional shares of Common Stock (including, Shelf Takedown without limitation, any shares of Common Stock to be distributed in a primary offering made by the Company) so long as the inclusion of such Common Stock by the Company would not (as determined in the Initiating Holder’s reasonable discretion), (i) be reasonably likely to delay in any material respect the Initiating Holder’s ability timely to sell the Registrable Securities pursuant to the Underwritten Demand Registration Statement or (ii) cause a previous Piggyback Registration reduction in which holders the number of Registrable Securities were permitted to register included in the offer and sale under the Securities Act, and actually sold, at least Underwritten Demand Registration as a majority result of the Company’s election to so register additional shares of Registrable Securities requested Common Stock. Such election of the Company, if made, shall be made by the Company giving written notice to be included therein. The Company may postpone for up the Initiating Holder prior to ninety (90) days the filing or effectiveness of a the Underwritten Demand Registration Statement for a Demand Registration or a supplement stating (a “Shelf Supplement”A) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable proposes to comply with requirements under the Securities Act or Exchange Act; provided, that include additional shares of Common Stock in such event the holders of a majority of the Registrable Securities initiating such Underwritten Demand Registration or Shelf Takedown shall be entitled to withdraw such request andStatement, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(eB) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderincluded.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At any time beginning after one hundred eighty (180) days after the Closing Dateinitial public offering of the Company’s Common Stock pursuant to an effective registration under the Securities Act, the holders of a majority of the Registrable Securities then outstanding may request registration under notify the Securities Act of Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify covering the registration of at least such number of the Registrable Securities requested to be included having an anticipated aggregate offering price, net of underwriting discounts and commissions, of at least $10,000,000 in the Long-Form Registrationmanner specified in such request. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Investors holding Registrable Securities who shall then have five thirty (530) days from the date such notice is given 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 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. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall will use its best efforts to cause expeditiously effect (but in any event no later than thirty (30) days after such Registration Statement request) the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act, but only to be declared effective by the Commission as soon as practicable thereafter. The extent provided for in this Agreement; provided, however, that the Company shall not be required to effect registration pursuant to a Long-Form Registration request under this Section 2 more than two (2) times for the holders of the Registrable Securities as a group; provided. Notwithstanding anything to the contrary contained herein, that no request may be made under this Section 2 within ninety (90) days after the effective date of a Registration Statement 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 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 Long-Form Registration requested registration under this Section 2(a) unless and until it the registration statement relating to such registration has become 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) If a requested registration involves an underwritten public offering and the holders requesting managing underwriter of such registration are able offering determines in good faith that the number of securities sought to register and sell at least a majority be offered should be limited due to market conditions, then the number of the Registrable Securities requested securities to be included in such registration.
(b) After the Registration Date, the Company underwritten public offering shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant be reduced to a Registration Statement on Form S-3 number deemed satisfactory by such managing underwriter; provided, that the 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 registration statement, (ii) securities held by any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, other Persons (other than the holders of Registrable Securities shall have the Securities) having a contractual, incidental “piggy back” right to request an unlimited number of registrations under include such securities in the Securities Act of all or any portion of their Registrable Securities registration statement, (iii) securities to be registered by the Company pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” such registration statement and, collectively with each Long-Form Registration and Shelf Registration if necessary, (as defined below), iv) Registrable Securities. If there is a “Demand Registration”). Each request for a Short-Form Registration shall specify reduction of the number of Registrable Securities requested pursuant to clause (iv), such reduction shall be included in made on a pro rata basis (based upon the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders aggregate number of Registrable Securities who shall then have five (5) days from the date held by such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterholders).
(c) At such time as the Company shall have qualified With respect to a request for the use of a Registration Statement on Form S-3 or the then appropriate form registration pursuant to Section 2(a) which is for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”)underwritten public offering, the holders of Registrable Securities managing underwriter shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective chosen by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the offering (which approval will not be unreasonably withheld or delayed). The Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by may not cause any other Persons registration of securities for sale for its own account (including shares of Common Stock other than a registration effected solely to be sold for the account implement an employee benefit plan or a transaction to which Rule 145 of the Company and/or other holders of Common StockSecurities Act is applicable) allocated among such Persons in such manner as they may agree. If to become effective within one hundred twenty (120) days following the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt effective date of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted required pursuant to file any Registration Statement on Form S-8this Section 2.
Appears in 1 contract
Sources: Registration Rights Agreement (Twist Bioscience Corp)
Demand Registration. (a) At any time beginning one hundred eighty after the date that is eighteen (18018) days after months following the Closing Date, holders of a majority of and until the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities be sold pursuant to Rule 144 without volume limitation, Holders holding a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included majority in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all interest of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under demand, in writing, that the Securities Act of all or any portion of their Registrable Securities pursuant to Company file with the Commission a Registration Statement covering the resale of the Registrable Securities that are not then registered on Form S-3 or any similar short-form an effective Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested an offering to be included in the Short-Form Registrationmade on a continuous basis pursuant to Rule 415. Upon receipt of any such requestwritten demand, the Company shall promptly prepare, and, on or prior to ninety (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (590) days from the date of receipt of such notice is given to notify written demand (the Company in writing of their desire to be included in such registration. The Company shall prepare and “Filing Deadline”), file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 (or any successor if such form thereto covering all of is not available to the Registrable Securities that the holders thereof have requested to be included Company on another form appropriate for such registration in such Short-Form Registration within thirty accordance herewith). The Company shall (30i) days after the date on which the initial request is given and shall use its best efforts to cause such the Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto not later than sixty (60) days (the “Effectiveness Deadline”) after such filing (including filing with the Commission a “Shelf Registration Statement”), the holders request for acceleration of Registrable Securities shall have the right to request registration effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (5) Business Days of all the date that the Company is notified (orally or any portion of their Registrable Securities for an offering on in writing, whichever is earlier) by the Commission that a delayed Registration Statement will not be “reviewed,” or continuous basis pursuant not be subject to Rule 415 further review), provided, however, if the Registration Statement is being “reviewed” by the Commission then the Effectiveness Deadline shall be 120 days from the Filing Deadline and (ii) keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date when all Registrable Securities covered by such Registration Statement have been sold or any successor rule thereto (a y) the date on which all Registrable Securities may be sold, pursuant to Rule 144 without restriction (the “Shelf RegistrationEffectiveness Period”). Each request for a Shelf Upon the initial filing thereof and upon the filing of any pre-effective amendment thereto, the Registration Statement shall specify cover all of the Registrable Securities. Notwithstanding anything to the contrary herein, if the Commission informs the Company that it will not allow the Registration Statement to cover at least 100% of the Registrable Securities, then the Registration Statement shall cover the highest percentage of such Registrable Securities that the Commission will allow. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. In the event that the Registration Statement (containing such number of Registrable Securities requested as is permitted by the Commission) is not declared effective by the Effectiveness Deadline (the “Event Date”), then, in addition to be included in any other rights the Shelf Registration. Upon receipt of any such requestHolders may have hereunder or under applicable law, the Company shall promptly pay to Purchaser on each monthly anniversary of the Event Date (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from if the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of has not been declared effective) until the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be has been declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown an amount in cash or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed Stock, or a combination thereof, as partial liquidated damages and not as a penalty, equal to be included in the Demand Registration or Shelf Takedown0.5% of $4,000,000, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offeringprovided, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registrationhowever, the Company shall not file any other Registration Statement without pay more than $150,000 pursuant to this Section. The price at which shares of Common Stock issuable in lieu of cash hereunder shall be equal to the consent lesser of (x) 85% of the holders of a majority average of the Registrable Securities requesting registration until 5 consecutive VWAPs immediately prior to the consummation applicable Event Date, or (y) 85% of the sale average of Registrable Securities contemplated by the applicable Demand Registration; provided that 5 consecutive VWAPs immediately prior to the Company date such damages are due. Subject to the terms and conditions herein, the decision whether to pay partial liquidated damages hereunder in shares of Common Stock or cash shall be permitted to file any Registration Statement on Form S-8at the discretion of the Company.
Appears in 1 contract
Sources: Investor Rights Agreement (DecisionPoint Systems, Inc.)
Demand Registration. (a) At Upon receipt by the Company at any time beginning one hundred eighty (180) days after following the second anniversary of the Closing Date, holders Date of a majority written request from the Consultant for registration of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt resale of any such request, the Company shall promptly Registrable Shares (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datedefined herein), the Company shall use its best commercially reasonable efforts to qualify cause a registration statement to be filed under the Securities Act, and remain qualified any other applicable Laws, within 60 days after the receipt of such request. The Company shall use all commercially reasonable efforts to register cause any such registration statement to become effective and to maintain the offer effectiveness of such registration statement until (x) the date all Registrable Shares have been sold pursuant thereto or (y) 180 days after the effective date of such registration statement. The term "registration statement" means a registration statement filed under the Securities Act, or any similar disclosure document, filing, or listing particulars utilized in connection with a Public Equity Offering. "Registrable Shares" means shares of Stock owned by Consultant and his Affiliates on the date of this Agreement and all other shares of Stock acquired from time to time by the Consultant or his Affiliates and any securities issued or issuable with respect to any such shares of Stock by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, share exchange, merger, consolidation, reorganization, Business Combination, or otherwise. As to any particular Registrable Shares, such securities shall cease to be Registrable Shares when (i) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act pursuant to (or under the applicable Laws of the relevant jurisdiction) and such securities shall have been disposed of in accordance with the plan of distribution set forth in such registration statement, (ii) such securities shall have been distributed in accordance with Rule 144 of the Securities Act, or (iii) such securities shall have been otherwise transferred, new certificates therefor not bearing a Registration Statement on Form S-3 or any successor form thereto. At such time as legend restricting further transfer shall have been delivered in exchange therefor by the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice subsequent disposition of such request to all other holders of Registrable Securities who shares shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (not require registration or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 qualification under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafterapplicable Law.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Consulting Agreement (Kevco Inc)
Demand Registration. (a) At In case the Company shall receive from Initiating Holders a written request that the Company effect any time beginning one hundred eighty (180) days after the Closing Dateregistration, holders of a majority of the qualification or compliance with respect to Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such requestSecurities, the Company shall will:
(i) promptly (but in no event later than five (5) days following receipt thereof) deliver give written notice of such request the proposed registration, qualification or compliance to all other holders of Registrable Securities who shall then have five Holders; and
(5ii) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare as soon as practicable, file and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause effect such Registration Statement registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, 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) as may be declared effective by so requested and as would permit or facilitate the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders sale and distribution of all or such portion of such Registrable Securities as a group; providedare specified in such request, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting together with all or such registration are able to register and sell at least a majority portion of the Registrable Securities requested to be included of any Holder or Holders joining in such registration.
(b) After the Registration Date, request as are specified in a written request received by the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver written notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities Company; provided, however, that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to take any action to effect any Demand Registration within three such registration, qualification or compliance pursuant to this Section 1.5:
(31) months after 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;
(2) Prior to the earlier of (i) September 21, 2003, and (ii) the six- month anniversary of the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under Initial Public Offering;
(3) During the Securities Act, and actually sold, at least a majority of period starting with the shares of Registrable Securities requested to be included therein. The Company may postpone for up to date ninety (90) days prior to the Company's estimated date of filing of, and ending on the date six (6) months immediately following the effective date of any registration statement pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or effectiveness of with respect to
(4) During the period commencing on the date on which a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering registration pursuant to Rule 415 under the Securities Act this subparagraph 1.5
(a) has been declared or any successor rule thereto ordered effective, and ending one (a “Shelf Takedown”1) if the Board determines in its reasonable good faith judgment that year after such Demand Registration or Shelf Takedown would date;
(i5) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that After the Company has effected a bona fide business purpose for preserving as confidential; second registration pursuant to this subparagraph 1.5(a), and such registration has been declared or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.ordered effective;
(e6) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of aggregate proceeds from the sale of Registrable Securities contemplated described in the registration statement will not exceed $2,000,000; or
(7) If the Company shall furnish to such Holders a certificate, signed by the applicable Demand RegistrationPresident of the Company, stating that in the good faith and reasonable judgment of the Board of Directors it would be seriously detrimental to the Company or its shareholders 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 1.5 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 provided, however, that the Company may not utilize this right more than once in any twelve (12) month period. Subject to the foregoing clauses (1) through (7), the Company shall file a registration statement covering the Registrable Securities so requested to be permitted to file any Registration Statement on Form S-8registered as soon as practicable after receipt of the request or requests of the Initiating Holders.
Appears in 1 contract
Demand Registration. (a) At Except as provided herein and subject to the condition that in the reasonable judgment of Group Holdings and at least five members of the Management Committee of Qualis, implementation of a Demand Registration (as defined below) will not result in (i) Qualis being treated as a "publicly traded partnership" within the meaning of Section 7704 of the Internal Revenue Code of 1986, as amended from time to time, any successor thereto and applicable regulations thereunder, (ii) Qualis otherwise being treated as an association taxable as a corporation for federal income tax purposes or (iii) Qualis no longer existing or qualifying as a limited partnership under any applicable state law, if Cargill has duly exercised the Warrant, Cargill may, at any time beginning one hundred eighty (180) days after the Closing Datebetween March 1, holders of 1999 and February 28, 2000, make a majority of the Registrable Securities then outstanding may written request to Qualis for registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all part of the Registrable Securities that it then owns or may own at any time upon exercise of the holders thereof have requested Warrant or of its option under the Participation Agreement (a "Demand Registration"). Any such request by Cargill shall specify the aggregate amount of Registrable Securities to be included in registered and shall also specify the intended method of disposition thereof. Within five Business Days after receipt of such Long-Form registration request, Qualis shall commence the preparation of the registration of the Registrable Securities. Qualis may, upon notice to Cargill, delay the effectuation of such Demand Registration within sixty (60) for a reasonable period of time, but not more than 90 days after receipt of the date on which request for such Demand Registration, (x) as is necessary to prepare audited financial statements of Qualis for its most recently completed fiscal year or other audited financial statements reasonably required in the initial request is given and shall use its best efforts Registration Statement, or (y) if Qualis would be required to cause divulge in such Registration Statement the existence of any fact relating to a proposed acquisition, financing or other material corporate development not otherwise required to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective disclosed and the holders requesting Management Committee of Qualis shall have in good faith determined that such registration are able disclosure would be materially adverse to register and sell at least a majority Qualis. Such notice of delay shall explain, in reasonable detail, the reasons for such delay. If Qualis shall so delay the effectuation of the Registrable Securities requested Demand Registration, Cargill may, within 30 days after receipt of the notice of delay, notify Qualis that it is withdrawing its request for registration and, such Demand Registration shall be deemed to be included in withdrawn and such registrationrequest shall be deemed not to have been exercised for purposes hereof.
(b) After the Registration Date, the Company shall use its best efforts Subject to qualify Section 7.1(a) and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below7.1(d), a “Cargill shall be entitled to one Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an The offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one be in the form of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registrationan Underwritten Offering if requested by Cargill. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters unanimously determine in connection with such offering, which underwriter must be reasonably acceptable to good faith that the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders total amount of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering is such as to materially adversely affect the success of such offering, exceeds then the number amount of shares Registrable Securities shall be reduced or limited pro rata among Qualis and Cargill in proportion to the amount of Common Stock which can Registrable Securities sought to be sold in such underwritten offering and/or registered by each, to the number extent necessary to reduce the total amount of shares of Common Stock proposed Registrable Securities to be included in such offering to the amount that, in the reasonable opinion of such managing underwriter or underwriters, can be sold without materially adversely affecting the success of such offering.
(d) If (i) more than 5% of Cargill's Registrable Securities sought to be registered in any Demand Registration is not included in such registration pursuant to Section 7.1(c), (ii) a Demand Registration is delayed pursuant to Section 7.1(a) hereof and is not effective or Shelf Takedown would adversely affect the price per share otherwise is not effective within 180 days after Cargill's demand for registration, (iii) if such registration, after it has become effective, is interfered with by any stop order, injunction or other order or requirement of the Common Stock proposed SEC or other governmental agency or court by reason of an act or omission by Qualis or any of its subsidiaries or (iv) the conditions to be sold closing specified in the purchase agreement or underwriting agreement entered into in connection with such underwritten offeringregistration are not satisfied because of an act or omission by Qualis or any of its subsidiaries (other than by reason of facts or circumstances not within control of Qualis or any such subsidiary), the Company shall include then in each such case such Demand Registration or Shelf Takedown shall not be counted for purposes of calculating the number of demand rights exercised by Cargill and in case of the circumstances described in (i) firstabove, Cargill shall be entitled to a Demand Registration for such remaining Registerable Securities that may be exercised no sooner than nine months after the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account close of the Company and/or other holders of Common Stocktransaction described in (i) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less above and no later than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder18 months thereafter.
(ge) Upon receipt of Nothing in this Section 7.1 or in Section 7.2 hereof shall create any Demand Registration, the Company shall not file right in Cargill to require Qualis to register any securities other Registration Statement without the consent of the holders of a majority of the than Registrable Securities requesting registration until under the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8Act.
Appears in 1 contract
Sources: Warrant, Subscription and Rights Agreement (Qualis Care Lp)
Demand Registration. (a) At any time beginning one hundred eighty Upon receipt of a written request (180a "Registration Request") days after the Closing Date, holders of from Holders holding at least a majority of the Registrable Securities then outstanding may request Registrable Shares requesting that the Company effect the registration under the Securities Act of all or Registrable Shares at any portion of their Registrable Securities pursuant to time that the Company's Common Stock is traded on a Registration Statement on Form S-1 or any successor form thereto public market with a Fair Value (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included as defined in the Long-Form Registration. Upon receipt Warrant Agreement) of the Registrable Shares of $5.00 or more (as adjusted to reflect any such requeststock dividend, stock split or reverse stock split, combination, recapitalization, reclassification, merger or consolidation, exchange, distribution or similar transaction), the Company shall (i) promptly (but in no event later than five (5) days following receipt thereof) deliver give notice of such request the Registration Request to all other holders non-requesting Holders and (ii) prepare and file with the Commission, within 45 days after its receipt of such Registration Request a registration statement for the purpose of effecting a registration of the Registrable Securities who shall then have five (5) days from the date such notice is given to notify Shares which the Company in writing of their desire has been so requested to be register by the requesting Holders and any other Holder who requests to have its Registrable Shares included in such registrationregistration statement within 10 days after receipt of notice by such Holder of the Registration Request. The Company shall prepare use its reasonable best efforts to effect such registration as soon as practicable but not later than 120 days after its receipt of such Registration Request (including, without limitation, the execution of an undertaking to file post-effective amendments and file with appropriate qualification under applicable state securities laws); and shall keep such registration continuously effective until the earlier of (or confidentially submit toi) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all second anniversary of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty date hereof, and (60ii) days after the date on which all Registrable Shares registered pursuant to such registration have been sold pursuant to such registration statement or Rule 144; provided, however, that the initial request Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 2 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 given already subject to service in such jurisdiction. Notwithstanding the foregoing, the Company shall have the right (the "Suspension Right") to defer such filing (or suspend sales under any filed registration statement or defer the updating of any filed registration statement and suspend sales thereunder) for a period of not more than 60 days during any twelve-month period, if the Company shall use furnish to the Holders a certificate signed by an executive officer or any director of the Company stating that, in the good faith and reasonable judgment of the Company, it would be materially detrimental to the Company and its best efforts stockholders to cause file such Registration Statement registration statement or amendment thereto at such time (or continue sales under a filed registration statement) and therefore the Company has elected to be declared effective by defer the Commission as soon as practicable thereafter. filing of such registration statement (or suspend sales under a filed registration statement).
(b) The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under demand registrations pursuant to this Section 2(a) unless and until it has become effective and 2; provided that if any registration is suspended or otherwise adversely affected by the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use issuance of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective stop order by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (state securities commission or any injunction is issued by any court or other governmental agency that results in a “Shelf Registration Statement”)suspension of the registration statement or otherwise adversely affects the registration, the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown Holders shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such an additional demand registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At If at any time beginning one hundred eighty the Holders of at least thirty-five percent (18035%) days after the Closing Date, holders of a majority in aggregate principal amount of the Registrable Securities then outstanding may request in writing to the Company registration (the “Demand Request”) under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (eachSecurities, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon then upon receipt of any such request, the Demand Request:
(a) The Company shall promptly (but in no event later than five ten (510) days following receipt thereofof the Demand Request) deliver notice of such request to all other holders Holders of Registrable Securities, and such Holders of Registrable Securities who shall then have five ten (510) days from the date such to deliver notice is given to notify the Company in writing of electing to have their desire to be Registrable Securities included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Initial Shelf Registration Statement on Form S-1 or any successor form thereto covering all of Subsequent Shelf Registration, subject to the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Holders’ further compliance with Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration3(e).
(b) After the Registration Date, the The Company shall use its best commercially reasonable efforts to qualify and remain qualified to register file with the offer and sale of securities under the Securities Act pursuant to SEC a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that (the holders thereof have requested to be included in such “Initial Shelf Registration”). The Initial Shelf Registration within ten shall be on Form ▇-▇, ▇▇▇▇ ▇-▇, if available to the Company, or another appropriate form permitting registration of such Registrable Securities for resale by Holders in the manner or manners designated by them (10including, without limitation, one or more Underwritten Offerings); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) days after and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the date on which Company and the initial request is given and Guarantors shall use its best efforts to cause such file the Shelf Registration Statement to be declared effective by in the Commission form of an automatic shelf registration statement as soon as practicable thereafter.
(d) provided in Rule 405. The Company shall not be obligated to effect permit any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of than the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Initial Shelf Registration or any Subsequent Shelf TakedownRegistration. The Company shall use its commercially reasonable efforts to cause the Shelf Registration to be declared effective under the Securities Act as soon as practicable after filing and in any case on or prior to the Effectiveness Date and to keep the Initial Shelf Registration continuously effective under the Securities Act until the earliest of (i) the date that is two years in the case of a Form S-1, including and three years in the case of a Form S-3, from the date of effectiveness of the Initial Shelf Registrations, (ii) the date that all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated covered by the applicable Demand Registration; Initial Shelf Registration have been resold in compliance with Rule 144, provided that such Securities do not bear any restrictive legend relating to the Company shall be permitted to file any Registration Statement on Form S-8.Securities Act and do not bear a restricted CUSIP number, or
Appears in 1 contract
Demand Registration. After the occurrence of an Exercise Event (aas such term is defined in the Warrant Agreement) At any time beginning one hundred eighty (180) days after and the Closing Datecompletion of an Initial Public Equity Offering, the holders of a number of Warrants, Warrant Shares and Registrable Securities (collectively, the "Subject Equity") equivalent to at least a majority of the Registrable Securities then outstanding Warrant Shares subject to the Warrants originally issued on the Issue Date, from time to time, may make a written request to the Company to effect one registration (the "Demand Registration") under the Securities Act of the Subject Equity. Any such request will specify the number of shares of Subject Equity proposed to be sold and will also specify the intended method of disposition thereof. Within 10 days after the receipt of such written request for a Demand Registration, the Company shall notify the Holders of all or Subject Equity that a Demand Registration has been requested. Within 45 days after receipt by any portion Holder of their Registrable Securities pursuant to a Subject Equity of such notice from the Company, such Holder may request in writing that such Holder's Subject Equity be included in such Registration Statement on Form S-1 or any successor form thereto and the Company shall include in such Registration Statement the Subject Equity of such Holder requested to be so included (each, a “Long-Form Registration”the "Included Securities"). Each such request for a Long-Form Registration by such other Holders shall specify the number of Registrable Included Securities requested proposed to be included in sold and the Long-Form Registrationintended method of disposition thereof. Upon receipt of any such requestFurthermore, the Company shall promptly (but in no event later than five (5) prepare, file with the SEC and use its best efforts to cause to become effective under the Securities Act within 150 days following receipt thereof) deliver notice of such demand a Registration Statement in respect of all of the Subject Equity which the Holders request and keep such registration statement continuously effective until the earlier to all other holders occur of Registrable Securities who shall then have five (5i) days from the date that is 180 days after such notice is given to notify effectiveness (the Company in writing "Effectiveness Period"), (ii) such period of their desire to be time as all of the Subject Equity included in such registration. The Company registration statement shall prepare have been sold thereunder and file with (or confidentially submit toiii) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be Subject Equity included in such Long-Form registration becomes fully saleable under paragraph (K) of Rule 144. If a Demand Registration within sixty occurs during the "lock up" or "black out" period (60not to exceed 180 days) days after imposed on the date on Company pursuant to or in connection with any underwriting or purchase agreement relating to an underwritten Rule 144A or registered public offering of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock, the Company shall not be required to so notify Holders of Subject Equity and file such Registration Statement with respect to the Subject Equity which the initial Holders request is given and shall prior to the end of such "lock up" or "black out" period, in which event the Company will use its best efforts to cause such Registration Statement registration statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and no later than the holders requesting later of (i) 150 days after such registration are able to register and sell at least a majority demand or (ii) 30 days after the end of such "lock up" or "black out" period. In the Registrable Securities requested to be included in such registration.
(b) After the Registration Dateevent of any "lock up" or "black out" period or any underwriting or other purchase agreement, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to so notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select Notwithstanding the investment banking firm or firms foregoing, in lieu of filing and causing to act as become effective the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement may satisfy its obligation with respect thereto by making and consummating (or having its designee make and consummate) an offer to purchase all Subject Equity at a price at least equal to Current Market Value (as defined in the Warrant Agreement, but without the consent inclusion of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the clause (i)(a) thereof), less any applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8Exercise Price.
Appears in 1 contract
Sources: Warrant Registration Rights Agreement (Pathnet Inc)
Demand Registration. (ai) At any time beginning one hundred eighty after the date that is thirty (18030) days after prior to the Closing Date, holders of a majority expiration of the Registrable Securities then outstanding Merger Lock-Up Period, any 5% Stockholder may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement registration statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days Business Days following receipt thereof) deliver written notice of such request to all other holders of Registrable Securities Stockholders who shall then have five ten (510) days Business Days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement registration statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders Stockholders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best commercially reasonable efforts to cause such Registration Statement registration statement to be declared effective by the Commission as soon as practicable thereafter.
, provided that such effectiveness and any sales under such Long-Form Registration shall not occur prior to the expiration of the Merger Lock-Up Period. The Company shall not be required to effect a Long-Form Registration more than three (c3) At times for the Stockholders as a group; provided that a registration shall not be counted as “effected” for purposes of this Section 2(a)(i) until such time as the applicable registration statement has been declared effective by the Commission, unless the Stockholders initiating the applicable Long-Form Registration withdraw their request for such registration and forfeit their right to one Long-Form Registration, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2(a)(i).
(ii) The Company shall have use its commercially reasonable efforts to qualify and remain qualified for to register the offer and sale of securities under the Securities Act pursuant to a registration statement on Form S-3 or any successor form thereto. Subject to Section 2(a)(iii) hereof, within fifteen (15) Business Days of the later of the end of the Merger Lock-Up Period and the Company becoming eligible to utilize Form S-3 or any successor form thereto (the “Qualification Date”), the Company shall use of its commercially reasonable efforts to prepare and file with (or confidentially submit to) the Commission a Registration Statement registration statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”)) providing for the registration of, and the holders sale on a continuous or delayed basis of, all of the Common Stock that constitute Registrable Securities at such time (a “Short-Form Registration”, and together with each Long-Form Registration, a “Demand Registration”) and, if such Shelf Registration Statement is not automatically effective pursuant to Commission rules, shall have use its commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the right Commission as soon as practicable thereafter and maintain the effectiveness of such registration statement, and to request be supplemented and amended as promptly as practicable to the extent necessary to ensure that the registration under statement is available (which shall be on Form S-3, or if Form S-3 is not then available to the Securities Act of all Company, on Form S-1 or any portion of their Registrable Securities such other appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (which registration statement shall also be referred to herein as a Shelf Registration Statement)) until all Registrable Securities are sold thereunder or the Stockholders no longer hold any Registrable Securities. Notwithstanding the foregoing, a Stockholder may elect not to have all or any portion of its Registrable Securities included in a Short-Form Registration by delivering a written notice to that effect to the Company prior to the Qualification Date. The Company shall not be required to include a Stockholder’s Registrable Securities in a Short-Form Registration if such Stockholder does not comply with Section 2(d) hereof. Subject to Section 2(a)(iii) hereof, each 5% Stockholder that owns Registrable Securities included on a Shelf Registration Statement (each, a “Shelf RegistrationRequesting Holder”) shall be entitled, at any time and from time to time when a Shelf Registration Statement is effective, to sell any of the Registrable Securities held by such Stockholder as are then registered pursuant to a Shelf Registration Statement in an underwritten offering (each, a “Shelf Takedown”). Each The Shelf Requesting Holder(s) shall make such election to conduct such an underwritten offering by delivering to the Company a written request (a “Shelf Takedown Request”) for a Shelf Registration shall specify such offering specifying the number of Registrable Securities requested that such Shelf Requesting Holder(s) desire to be included in the sell pursuant to such Shelf RegistrationTakedown. Upon Within five (5) Business Days after receipt of any such requestrequest for a Shelf Takedown, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver give written notice of such request to all other holders Stockholders that own Registrable Securities included on such Shelf Registration Statement that are not Shelf Requesting Holders, if any, and the Company shall include in such Shelf Takedown the number of Registrable Securities who of the Shelf Requesting Holder(s) and any such other Stockholders that shall then have five (5) days from the date such notice is given made a written request to notify the Company in writing for inclusion of their desire Registrable Securities in the Shelf Takedown (which request shall specify the maximum number of Registrable Securities intended to be included in sold by such registration. The Stockholder) and with respect to which the Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration has received written requests for inclusion therein within ten (10) days Business Days after the date on which the initial request Company’s notice was delivered. The Company shall, as expeditiously as possible (and in any event within fifteen (15) Business Days after the receipt of a Shelf Takedown Request, unless a longer period is given and shall use its best efforts agreed to cause by the Shelf Requesting Holder(s)), facilitate such Shelf Registration Statement Takedown. The Company shall not be required to be declared effective by effect a Shelf Takedown more than two (2) times for the Commission Stockholders as soon as practicable thereaftera group during any calendar year.
(diii) The Company shall not be obligated to effect any Demand Long-Form Registration within three ninety (390) months days after the effective date of a previous Demand Registration, Shelf Takedown Long-Form Registration or a previous Piggyback Registration in which holders of Registrable Securities the Stockholders were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority 50% collectively of the shares of Registrable Securities requested to be included therein. The Company shall not be obligated to take any action to effect any such registration, qualification or compliance pursuant to this Section 2(a): (1) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification, or compliance, unless the Company is already subject to service in such jurisdiction and except as may postpone be required by the Securities Act; or (2) if in the good faith judgment of the Board, such registration, qualification or compliance would be materially detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such registration statement or the consummation of such Shelf Takedown at such time, and the Company thereafter delivers to each of the Stockholders initiating applicable Demand Registration, to each of the Stockholders that would be covered by a Short-Form Registration or to each of the Stockholders initiating a Shelf Takedown Request, as the case may be, a certificate, signed by the chief executive officer of the Company, stating that in the good faith judgment of the Board it would be seriously detrimental to the Company or its stockholders for up a registration statement to be filed or a Shelf Takedown to be effectuated in the near future, then the Company’s obligation to use its commercially reasonable efforts to register, qualify, or comply under this Section 2(a) shall be deferred for a period not to exceed ninety (90) days from (A) the filing or effectiveness date of a Registration Statement for a delivery of the written request from the Stockholder(s) initiating applicable Demand Registration or Shelf Takedown or (B) the Qualification Date, as the case may be; provided, however, that the Company may not invoke this right more than once in any twelve-month period.
(iv) To the extent any Demand Registration or Shelf Takedown is for a supplement registered public offering involving an underwriting, the Company shall so advise the Stockholders as a part of the written notice given pursuant to Section 2(a)(i) or Section 2(a)(ii) (a “Shelf Supplement”as applicable). The managing underwriter(s) for any such offering will be selected by a majority-in-interest of the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that Stockholders requesting such Demand Registration or Shelf Takedown would provided that such managing underwriter(s) shall either (ia) materially interfere with a significant acquisition, corporate organization, financing, securities offering be selected from those listed on Schedule 2 or other similar transaction involving the Company; (iib) require premature disclosure of material information that be approved by the Company has a bona fide business purpose for preserving as confidential; or (iii) render with such approval not to be unreasonably withheld). In the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such any Demand Registration or Shelf Takedown is for a registered public offering involving an underwriting, the right of any Stockholder to registration or to participate in a Shelf Takedown pursuant to this Section 2(a) shall be entitled to withdraw conditioned upon such request and, if Stockholder’s participation in such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder underwriting and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period inclusion of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect in the underwriting to the extent provided herein. All Stockholders proposing to distribute the Registrable Securities covered by their request in an underwritten offering, they securities through such underwriting shall so advise (together with the Company as a part and the other Stockholders distributing their securities through such underwriting) enter into and perform their obligations under an underwriting agreement in the form agreed to between the Company and the managing underwriter(s) selected for such underwriting by the Company and in customary form. Notwithstanding any other provision of their request made pursuant to this Section 2(a), Section 2(b)if the managing underwriter(s) determines in good faith that marketing factors require a limitation of the number of shares of Common Stock to be underwritten, or Section 2(cthe managing underwriter(s) and may limit the Company shall include such information in its notice to the other holders number of Registrable SecuritiesSecurities to be included in the registration and underwriting. The Company shall select so advise all Stockholders requesting registration or Shelf Takedown, and the investment banking firm number of shares of Common Stock that are entitled to be included in the registration and underwriting for the Stockholders shall be allocated on a pro rata basis according to the number of shares of Common Stock requested by each Stockholder to be included therein. If any Person who has requested inclusion in such registration or firms to act Shelf Takedown as provided above disapproves of the terms of the underwriting, such Person shall be excluded therefrom by written notice delivered by the Company or the managing underwriter(s). Any Registrable Securities and/or other securities so excluded or withdrawn shall also be withdrawn from such registration or the Shelf Takedown, as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringcase may be.
(fv) The Subject to the rights granted pursuant to the Treasury Warrant Agreements, the Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders Stockholders who hold at least 25% of a majority of the Registrable Securities initially requesting such Demand Registration Registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter underwriter(s) of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities applicable Stockholders in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock of the Company with registration rights (the “Other Shares”) proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i1) first, the shares of Common Stock that the holders of Registrable Securities Stockholders propose to sell, and (ii2) second, the shares Other Shares of Common Stock proposed to be included therein by any other Persons (including and shares of Common Stock to be sold for the account of the Company and/or other holders of Common StockStockholders) allocated among such Persons in such manner as they may agree; provided, however, that in the event of any conflict between this Section 2(a)(5) and the order of priority contemplated in Section 4.5(b)(vi) of the Treasury Warrant Agreements, then the Company shall apply the order of priority in the Treasury Warrant Agreements to the extent that this Agreement would otherwise result in a breach under the Treasury Warrant Agreements. If the managing underwriter underwriter(s) determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders Stockholders thereof on the basis of the number of Registrable Securities owned by each such holderStockholder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At Upon a written request therefor from any time beginning one hundred eighty record holder or holders of more than 50% of the Note Shares issued and issuable upon conversion of the outstanding Notes, the Company shall prepare and file with the Commission a registration statement under the 1933 Act registering the Registrable Securities (180the “Demand Request”), which are the subject of such request for unrestricted public resale by the holder thereof. For purposes of this Section, Registrable Securities shall not include Securities which are (A) registered for resale in an effective registration statement, (B) included for registration in a pending registration statement, or (C) which have been issued without further transfer restrictions after a sale or transfer pursuant to Rule 144 under the 1933 Act. Upon the receipt of such request, the Company shall promptly give written notice to all other record holders of the Registrable Securities that such registration statement is to be filed and shall include in such registration statement Registrable Securities for which it has received written requests within ten (10) days after the Closing Company gives such written notice.
(b) The Company shall file with the Commission a Registration Statement on Form SB-2 (or such other form that it is eligible to use) in order to register the Registrable Securities for resale and distribution under the 1933 Act within forty-five (45) calendar days after receipt of a Demand Request (the “Filing Date”), holders and use its best efforts to cause to be declared effective not later than one hundred and fifty (150) calendar days after the Demand Request (the “Effectiveness Date”). The Company will register not less than a number of shares of common stock in the aforedescribed registration statement that is equal to 200% of the Note Shares issuable upon conversion of all of the Notes. The Registrable Securities shall be reserved and set aside exclusively for the benefit of each Investor, pro rata, and not issued, employed or reserved for anyone other than each such Investor. The Registration Statement will immediately be amended or additional registration statements will be immediately filed by the Company as necessary to register additional shares of Common Stock to allow the public resale of all Common Stock included in and issuable by virtue of the Registrable Securities. Except with the written consent of the Investors, or as described, no securities of the Company other than the Registrable Securities will be included in the Registration Statement.
(c) If the Holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act so elect, an offering of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor may be effected in the form thereto (eachof an Underwritten Offering. In such event, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify and, if the number managing underwriters advise the Company and such Holders in writing that in their opinion the amount of Registrable Securities requested proposed to be included sold in such Underwritten Offering exceeds the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders amount of Registrable Securities who which can be sold in such Underwritten Offering, there shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) Underwritten Offering the Commission a Registration Statement on Form S-1 or any successor form thereto covering all amount of the such Registrable Securities that which in the holders thereof have requested opinion of such managing underwriters can be sold, and such amount shall be allocated pro-rata among the Holders proposing to be included sell Registrable Securities in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafterUnderwritten Offering.
(d) The Company shall not be obligated to effect If any Demand Registration within three (3) months after of the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested are to be included therein. The Company may postpone for up to ninety (90) days sold in an Underwritten Offering, the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for investment banker in interest that will administer the purpose of effecting an offering pursuant to Rule 415 under will be selected by the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders Holders of a majority of the Registrable Securities initiating included in such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of offering upon consultation with the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registrationCompany. The Company No Holder may delay a Demand Registration or Shelf Takedown hereunder only once participate in any period Underwritten Offering hereunder unless such Holder (i) agrees to sell its Registrable Securities on the basis provided in any underwriting agreements approved by the Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of 12 consecutive monthsattorney, indemnities, underwriting agreements and other documents required under the terms of such arrangements.
(e) If (i) a Registration Statement is not filed on or before the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made applicable Filing Date pursuant to Section 2(a), Section 2(b), or Section 2(c) and (if the Company shall include files such information in its notice Registration Statement without affording the Holder the opportunity to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering review and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof comment on the basis of the number of Registrable Securities owned same as required by each such holder.
(gSection 3(a) Upon receipt of any Demand Registrationhereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration in accordance with Rule 12d-2 promulgated under the Exchange Act within five (5) days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed” or is not subject to further review, or (iii) the Registration Statement filed hereunder is not declared effective by the Commission on or before the Effectiveness Date, or (iv) after a Registration Statement has been declared effective by the Commission, such Registration Statement is either not effective as to all Registrable Securities required to be covered thereby until such date when all Registrable Securities covered by such Registration Statement have been sold without volume restrictions pursuant to Rule 144(k) (the “Effectiveness Period”) or the Holders are not permitted for any reason to make sales thereunder during such Period, (v) an amendment to the Registration Statement is not filed by the Company with the Commission within ten (10) days of the Commission’s notifying the Company that such amendment is required in order for a Registration Statement to be declared effective, or (vi) trading in the Common Stock shall be suspended from the OTC Bulletin Board or a Subsequent Market (as defined in the Notes) for more than three (3) Business Days (which need not be consecutive days) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i), (iii) and (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five (5) day period is exceeded, or for purposes of clause (v) the date on which such ten (10) day period is exceeded, or for purposes of clause (vi) the date on which such three (3) Business Day period is exceeded being referred to as the “Event Date”), then, in any such case, as partial relief for the damages suffered therefrom by the Holders (which remedy shall not be exclusive of any other Registration Statement without remedies available at law or in equity), the consent of Company shall, on the holders of a majority of the Registrable Securities requesting registration Event Date and on each monthly anniversary thereof until the consummation triggering Event is cured, pay to the Holders an amount in cash, as liquidated damages, and not as a penalty, for the estimated cost to the Holders of not having liquid securities in the sale of Registrable Securities time contemplated by the applicable Demand Registration; provided that Transaction Documents, equal to 2% of the then outstanding principal amount under the Notes. The payments to which the Holders shall be entitled pursuant to this Section are referred to herein as “Registration Delay Payments.” Registration Delay Payments shall be calculated on a cumulative basis and paid within five (5) Business Days of the Event Date and each monthly anniversary thereof. If the Company fails to make Registration Delay Payments in a timely manner, such Registration Delay Payments shall be bear interest at the rate of 2.0% per month (or the maximum rate permitted to file any Registration Statement on Form S-8by law), pro-rated for partial months, until paid in full.
Appears in 1 contract
Sources: Registration Rights Agreement (Bio Solutions Manufacturing, Inc.)
Demand Registration. (a) At any time beginning one after the date that is one-hundred eighty and twenty (180120) days after the Closing Datedate of this Agreement, holders of a majority at least twenty percent (20%) of the Registrable Securities then outstanding and held by Note Holders or their assignees pursuant to Section 15 (“Note Holder Parties”) may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company Issuer shall promptly (but in no event later than five (5) days Business Days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days Business Days from the date such notice is given to notify the Company Issuer in writing of their desire to be included in such registration. Each holder of Registrable Securities who is a Note Holder Party agrees that the fact that such a notice has been delivered shall constitute confidential information. The Company Issuer shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Longfiled within seventy-Form Registration within sixty five (6075) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company The Issuer shall use its reasonable best efforts to qualify be and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such any time as when the Company shall have Issuer is qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities who are Note Holder Parties shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company Issuer shall promptly (but in no event later than five (5) days Business Days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days Business Days from the date such notice is given to notify the Company Issuer in writing of their desire to be included in such registration. The Company Issuer shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Shortfiled within forty-Form Registration within thirty five (3045) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter.
(c) At such time as . The Issuer shall not be required to effect a Long-Form Registration or a Short Form Registration more than five times in the Company shall have qualified aggregate for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities held by the Note Holder Parties as a group; provided, that a Registration Statement shall have not count as a Long-Form Registration requested under Section 2(a) or as a Short-Form Registration under this Section 2(b) unless and until it has become effective and the right holders requesting such registration are able to request registration under register and sell at least seventy-five percent (75%) of the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(dc) The Company Issuer shall not be obligated to effect any Demand Registration within three a hundred and twenty (3120) months days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority all of the shares of Registrable Securities requested to be included therein. The Company Issuer may postpone for up to ninety twenty (9020) days Business Days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Issuer’s Board of Directors determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the CompanyIssuer; (ii) require premature disclosure of material information that the Company Issuer has a bona fide business purpose for preserving as confidential; or (iii) render the Company Issuer unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company Issuer shall pay all registration expenses in connection with such registration. The Company Issuer may delay a Demand Registration or Shelf Takedown hereunder only once twice in any period of 12 twelve (12) consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company Issuer as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company Issuer shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Issuer, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(fe) The Company Issuer shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting included in such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company Issuer and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company Issuer shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities who are Note Holder Parties propose to sell, and (ii) second, the number of shares of Common Stock that the other holders of Registrable Securities propose to sell and (iii) third, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company Issuer and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Eco-Stim Energy Solutions, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datean IPO, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At Following the twelve (12) month anniversary of the consummation of an IPO, at such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities Investor shall have the right to request an unlimited number of registrations a one-time registration under the Securities Act of all or any portion of their its Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each The Investor’s request for a Short-Form Demand Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration within thirty (30) days filed as soon as practicable after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(db) The Company shall not be obligated to effect any Demand Registration within three one hundred eighty (3180) months days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority portion of the shares of Registrable Securities requested to be included therein. , pursuant to this or any other registration rights agreements pertaining to the Company.
(c) The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown Investor shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted one-time Demand Registrations Registration hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(ed) If the holders of the Registrable Securities Investor initially requesting a Demand Registration or Shelf Takedown elect elects to distribute the Registrable Securities covered by their its request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the an investment banking firm or firms reasonably acceptable to the Investor to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (1347 Property Insurance Holdings, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty following eighteen (18018) days months after the Closing Datedate of this Agreement, holders of a majority of the Registrable Securities then outstanding Investor may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement Shares on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested Shares required to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationregistered. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty ninety (6090) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter, provided, that the Company may use a Registration Statement on Form S-3 or any successor form thereto if the Company would qualify to use such form within thirty (30) days after the date on which the initial request is given to the Company and shall not be required to file such Registration Statement until it is so qualified. The Company shall not be required to effect a Long-Form Registration more than two five (25) times for the holders of Registrable Securities as a groupInvestor; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority ninety percent (90%) of the Registrable Securities Shares requested to be included in such registration.
(b) After the Registration Date, the The Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities Investor shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement Shares on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities Shares requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationregistered. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty ninety (3090) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as . With respect to any Short-Form Registration, the Investor may request the Company shall have qualified for to effect a registration of the use of Registrable Shares under a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(dc) The Company shall not be obligated to effect any Demand Registration within three one hundred twenty (3120) months days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities Shares were permitted to register the offer and sale under the Securities Act, and actually soldregister, at least a majority ninety percent (90%) of the shares of Registrable Securities Shares requested to be included therein. The Company may postpone for up to ninety one hundred twenty (90120) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) \l8a. materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) \l8b. require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) \l8c. render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown Investor shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses incurred by the Company in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 twelve consecutive months.
(ed) If the holders of the Registrable Securities Shares initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities Shares covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable SecuritiesShares. The Company Investor shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities Shares without the prior written consent of the holders of a majority of the Registrable Securities initially requesting Shares included in such registration, which consent shall not be unreasonably withheld or delayed, except to the extent Demand Registration or Shelf Takedownoverlaps with the filing of a Registration Statement by the Company as a result of certain registration rights obligations of the Company to the selling stockholders listed therein. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities Investor in writing that in its reasonable and good faith opinion the number of shares of Common Stock Shares proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities Shares and all other shares of Common Stock Shares proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock Shares which can be sold in such underwritten offering and/or the number of shares of Common Stock Shares proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Shares proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares number of Common Stock Shares that the holders of Registrable Securities Shares propose to sell, and (ii) second, the shares number of Common Stock Shares proposed to be included therein by any other Persons (including shares of Common Stock Shares to be sold for the account of the Company and/or other holders of Common StockShares) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities Shares proposed to be sold can be included in such offering, then the Registrable Securities Shares that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities Shares owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Genius Brands International, Inc.)
Demand Registration. (a) At Subject to Section 5 hereof, if at any time beginning one hundred eighty (180) days after any Holder shall request the Closing Date, holders of Company in writing to register under the Securities Act all or a majority part of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to held by such Holder (a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form "Demand Registration”"). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify cause to be filed and remain qualified to register declared effective as soon as reasonably practicable (but in no event filed later than the offer and sale of securities under the Securities Act pursuant to 60th day after such Holder's request is made) a Registration Statement registration statement, on Form S-3 or any successor such appropriate form thereto. At such time as the Company shall have qualified reasonably determine, providing for the sale of all such Registrable Securities by such Holder. The Company agrees to use of a Registration Statement on Form S-3 or its best efforts to keep any successor form thereto, the holders such registration statement continuously effective and usable for resale of Registrable Securities until the earlier of (a) the date the Holder whose Registrable Securities are included therein shall request and (b) the expiration of 180 days after such registration statement becomes effective, subject to extension as provided in Section 4(d). The Company shall be obligated to file registration statements pursuant to this Section 2(a) until all Registrable Securities have ceased to be Registrable Securities. Each registration statement filed pursuant to this Section 2(a) is hereinafter referred to as a "Demand Registration Statement." Holders shall be entitled to two effective Demand Registration Statements per year.
(b) The Company agrees (i) not to effect any public or private sale, distribution or purchase of any of its securities which are the same as or similar to the Registrable Securities, including a sale pursuant to Regulation D or Regulation S under the Securities Act, during the 60-day period prior to (or shorter if the Holder's notice precedes the offering by less than 60 days), and during the 90-day period beginning on, the closing date of each underwritten offering under any Demand Registration Statement, and (ii) to use reasonable best efforts to cause each holder of its securities purchased from the Company, at any time on or after the date of this Agreement (other than in a registered public offering) to agree not to effect any public sale or distribution of any such securities during such period, including a sale pursuant to Rule 144 under the Securities Act; it being understood that the registration rights granted hereunder are intended to take precedence over any other registration or distribution rights granted to any other purchasers of the Company's securities.
(c) The Company may postpone for a reasonable period of time, not to exceed 30 days, the filing or the effectiveness of any Demand Registration Statement if the Board of Directors of the Company in good faith determines that (A) such registration might have a material adverse effect on any plan or proposal by the Company with respect to any financing, acquisition, recapitalization, reorganization or other material transaction, or (B) the Company is in possession of material non-public information that, if publicly disclosed, could result in a material disruption of a major corporate development or transaction then pending or in progress or in other material adverse consequences to the Company.
(d) If at any time any Holder of Registrable Securities to be covered by a Demand Registration Statement desires to sell Registrable Securities in an underwritten offering, such Holder shall have the right to request an unlimited number of registrations under select any nationally recognized investment banking firm(s) to manage the Securities Act of all or any portion of their Registrable Securities pursuant offering, subject to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all approval of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on Company, which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company approval shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registrationunreasonably withheld, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses enter into underwriting agreements with the underwriter(s) of such offering, which agreements shall contain such representations and warranties by the Company, and such other terms, conditions and indemnities as are similar to those of the Company contained in connection with such registration. The Company may delay a Demand Registration the underwriting agreement dated October 7, 1999 relating to the Offering or Shelf Takedown hereunder only once otherwise are at the time customarily contained in any period of 12 consecutive monthsunderwriting agreements for similar offerings.
(e) If the holders of the Registrable Securities initially requesting a A Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made Statement requested pursuant to Section 2(a)) shall not be deemed to have been effected (i) if such Demand Registration Statement has not become effective, Section 2(b)(ii) if, after it has become effective, such Demand Registration Statement becomes subject to any stop order, injunction or Section 2(cother order of the SEC or other governmental agency or court for any reason or (iii) and if the Company shall include such information conditions to closing specified in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm purchase agreement or firms to act as the managing underwriter or underwriters underwriting agreement entered into in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which registration are not Registrable Securities without the prior written consent satisfied, other than solely by reason of the holders of a majority of the Registrable Securities initially requesting such Demand Registration some act or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated omission by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Homeservices Com Inc)
Demand Registration. The Stockholders may, by the Stockholder Representative giving at least 60 days' prior written notice to the Company (athe "Demand Notice"), make one demand during each of (i) At any time beginning the one hundred eighty (180) days after year period commencing on the Closing first anniversary of the Effective Date, holders of a majority (ii) the one year period commencing on the second anniversary of the Registrable Securities then outstanding may request registration under Effective Date and (iii) the Securities Act one year period commencing on the third anniversary of all or any portion of their Registrable Securities pursuant the Effective Date (each, a "Demand Registration Period") that the Company prepare and file with the Commission during the Demand Registration Period in which the Demand Notice is given, and subject to Section 2.4 below, the Company shall prepare and file during such Demand Registration Period, a Registration Statement on Form S-1 S-3 (or other appropriate form) (a "Demand Registration Statement") for an Offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act. covering such number of Registrable Securities, if any, then owned by the Stockholders not exceeding, in the aggregate, one-quarter (1/4) of the Shares. The Stockholders shall not be entitled to make more than one demand during any successor form thereto (eachDemand Registration Period, a “Long-Form Registration”)unless the Company and the Stockholder Representative agree otherwise; provided, however, that written notice of such demand may be given no earlier than 60 days prior to the commencement of the Demand Registration Period to which such demand relates. Each request for a Long-Form The number of Registrable Securities to be registered under any Demand Registration Statement shall specify be apportioned among the Stockholders in proportion to the number of Registrable Securities requested then held by each such Stockholder. Subject to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date2.4 below, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a file such Demand Registration Statement on Form S-3 or any successor form thereto. At such time as soon as reasonably practicable after the Company shall have qualified for receives the use of a Demand Notice, but in any event such Demand Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, filed no later than 60 days after the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from receives the date such notice is given to notify the Company in writing of their desire to be included in such registrationDemand Notice. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall will use its best efforts to cause such any Demand Registration Statement to be declared effective by the Commission as soon as reasonably practicable thereafter.
(c) At such time as after the Company shall have qualified for filing thereof with the use of a Registration Statement on Form S-3 or the then appropriate form for an offering Commission. Subject to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such requestSection 2.5 hereof, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that will keep such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose Statement effective for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count long as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included specified in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares plan of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderdistribution contained therein.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Comverse Technology Inc/Ny/)
Demand Registration. (a) At any time beginning one hundred eighty (180) days In the event that the Company has not filed a registration statement pursuant to Section 2.1 above within 6 months after the Closing Maturity Date, holders the Holders of at least 50% in interest of the Common Stock may make a majority written demand of the Company to register all of the Common Stock issuable upon conversion of the Notes. The Company shall, within 45 days of receiving such demand (the “Demand Date”), shall prepare and file with the Commission the Registration Statement covering the resale of all of the Registrable Securities then outstanding may request registration for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on Form S-1 or Form S-3, as applicable. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event not later than 180 days after the filing of such Registration Statement (the “Demand Effective Date”), and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the date when all or any portion of their Registrable Securities covered by the Registration Statement have been sold or may be sold pursuant to Rule 144 as determined by counsel to the Company pursuant to a Registration Statement on Form S-1 or any successor form thereto written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the Holder (each, a the “Long-Form RegistrationDemand Effectiveness Period”). Each request for The maximum amount of Registrable Securities that may be included in a Long-Form Registration Statement at any one time shall specify be limited by Rule 415 as required by the Commission. In the event that there is a limitation by the Commission on the number of Registrable Securities requested to that may be included in the Long-Form Registration. Upon receipt of any such requestfor registration at one time, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of use its reasonable best efforts to file an additional Registration Statement covering such request to all other holders of ineligible Registrable Securities who shall then have five (5) within 30 days from of the date such notice is given securities become eligible and to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause make such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registrationpracticably possible.
(b) After If: (i) a Registration Statement is not filed on or prior to the Registration Demand Date, or (ii) the Company shall use its best efforts fails to qualify and remain qualified to register file with the offer and sale of securities Commission a request for acceleration in accordance with Rule 461 promulgated under the Securities Act pursuant to Act, within 5 trading days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement on Form S-3 will not be “reviewed,” or any successor form thereto. At such time as the Company shall have qualified for the use of is not subject to further review, or (iii) a Registration Statement on Form S-3 filed or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested required to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice filed hereunder is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be not declared effective by the Commission on or before the Demand Effectiveness Date as soon a result of the failure of the Company to meet its obligations with respect to such filing as practicable thereafter.
provided for herein, or (civ) At after a Registration Statement is first declared effective by the Commission, it ceases for any reason to remain continuously effective as to the Registrable Securities held by the Holder, or the Holder is not permitted to utilize the Prospectus therein to resell such time Registrable Securities, for in any such case 30 consecutive days but no more than an aggregate of 60 days (which need not be consecutive days) during any 12-month period during which the Holder is not permitted to sell such Registrable Securities under Rule 144 (any such failure or breach being referred to as an “Demand Event,” and for purposes of clause (i) or (iii) the date on which such Event occurs, or for purposes of clause (ii) the date on which such 5 trading day period is exceeded, or for purposes of clause (iv) the date on which such 30-day or 60-day period, as applicable, is exceeded being referred to as “Demand Event Date”), then: (x) on the first Demand Event Date to occur the Company shall have qualified for pay to such Holder an amount, at the use election of the Company, in cash or in Common Stock, as liquidated damages and not as a Registration Statement on Form S-3 or penalty, equal to 1.0% of the then appropriate form for an offering to be made on a delayed or continuous basis aggregate purchase price paid by such Holder pursuant to Rule 415 under the Subscription Agreement for any Registrable Securities Act then held by such Holder for which such Holder has not received liquidated damages pursuant to Section 2.4 below; and (y) on each anniversary of such Demand Event Date (if the applicable Event, or any successor rule thereto (a “Shelf Registration Statement”)subsequent Event, the holders of Registrable Securities shall not have the right to request registration under the Securities Act of been cured by such date) until all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such requestEvent(s) are cured, the Company shall promptly (but pay to such Holder an amount, as determined by the Company, in no event later than five (5) days following receipt thereof) deliver notice cash or in Common Stock, as liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such request Holder pursuant to all other holders of the Subscription Agreement for any Registrable Securities who shall then have five (5) days from the date held by such notice is given to notify the Company in writing of their desire to be included in Holder for which such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall Holder has not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made received liquidated damages pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities2.4 below. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion In determining the number of shares of Common Stock proposed payable to be included in the Demand Registration or Shelf TakedownHolder, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the 20-day average closing price per share of the Common Stock proposed ending on the Demand Event Date shall be used. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be sold paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a year prior to the cure of a Demand Event.
2.3 Notwithstanding any other provision of this Section 2, if the Commission determines that the number of securities that the Company may register on the Registration Statement pursuant to Rule 415 is limited such underwritten offeringthat the shares so registered thereunder shall exclude any Registrable Securities held by the Holder, then the Company shall promptly so advise the Holder and the Company shall use commercially reasonable efforts to effect the registration of any Registrable Securities, not so included on the Registration Statement, on a pro-rata basis, as a result thereof as soon as is legally possible to do so. In such event, the Company shall include in pay to such Demand Registration or Shelf Takedown Holder liquidated damages as set forth hereof with respect to any Registrable Securities then held by the Holder that were not registered by the Effectiveness Date.
2.4 The parties acknowledge and agree that (i) first, the shares maximum amount of Common Stock damages that the holders Company shall be obligated to pay the Holder for any and all breaches of Registrable Securities propose to sellthis Section 2 is the amount of liquidated damages set forth in Section 2.1 or 2.2, and (ii) secondsuch liquidated damages shall be the sole remedy available to Holder for any breach of this Agreement, provided that nothing in this Section 2.4 shall preclude Holder from seeking injunctive relief, including specific performance of its rights under this Section 2.
2.5 At any time after a Registration Statement has become effective, the shares Company may, upon giving prompt written notice of Common Stock proposed such action to the Holder, suspend the use of any such Registration Statement if, in the good faith judgment of the Company, the use of a Registration Statement covering the Registrable Securities would be included therein by any other Persons (including shares of Common Stock detrimental to be sold for the account Company or its stockholders at such time and the Company concludes, as a result, that it is in the best interests of the Company and/or other holders or its stockholders to suspend the use of Common Stocksuch Registration Statement at such time. The Company shall have the right to suspend such Registration Statement for a period of not more than thirty (30) allocated among consecutive days from the date the Company notifies the Holder of such Persons in suspension, with such manner as they may agreesuspension not exceed an aggregate of sixty (60) days (whether or not consecutive) during any 12-month period. If In the managing underwriter determines that less than all case of the Registrable Securities proposed to be sold can be included in such offeringsuspension of any effective Registration Statement, then the Registrable Securities that are included in such offering shall be allocated pro rata among Holder, immediately upon receipt of notice thereof from the respective holders thereof on the basis of the number Company, will discontinue any sales of Registrable Securities owned pursuant to such Registration Statement until advised in writing by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other that the use of such Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall may be permitted to file any Registration Statement on Form S-8resumed.
Appears in 1 contract
Demand Registration. (aUpon written request of the Holder(s) At any time beginning one hundred eighty (180) days after the Closing Date, holders of at least a majority of the Registrable Securities then outstanding may request registration under Warrants and Warrant Shares made at any time within the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify period commencing one year and ending six years after the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such requestEffective Date, the Company shall promptly (but file within a reasonable period of time and, in no any event later than five (5within the time period provided in Section 12.3(a) days following after receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) written request, at its sole expense, on no more than two occasions, a registration statement under the Act registering the Warrant Shares. Within 15 days from the date after receiving any such notice is given to notify notice, the Company in writing of their desire shall give notice to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all other Holders of the Registrable Securities Warrants and the Warrant Shares advising that the holders thereof have requested Company is proceeding with such registration statement, and offering to be included in include therein the Warrant Shares of such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterother Holders. The Company shall not be obligated to include the Warrant Shares of any such other Holder in such registration unless such other Holder shall accept such offer by notice in writing to the Company within 15 days after receipt of such notice from the Company. The Company shall use its reasonable best efforts to file and cause such registration statement to become effective as promptly as practicable and to remain effective for the period of time provided in Section 12.3, to reflect in the registration statement financial statements that are prepared in accordance with Section 10(a)(3) of the Act, and to amend or supplement such registration statement to reflect any facts or events arising that, individually or in the aggregate, represent a material change in the information set forth in the registration statement to enable any Holders of Warrants to exercise warrants and/or sell the underlying Warrant Shares during such time period provided in Section 12.3. If any registration pursuant to this Section 12.1 is an underwritten offering, the Holders of a majority of the Warrant Shares to be included in such registration will select an underwriter (or managing underwriter if such offering should be syndicated) approved by the Company, such approval not to be unreasonably withheld. Notwithstanding anything in this Warrant Agreement to the contrary, the Company shall be entitled to postpone for a reasonable period of time (not exceeding 60 days in any 12-month period) the filing or effectiveness of any registration statement otherwise required to effect a Long-Form Registration more than two (2) times for be prepared and filed by it pursuant to
Section 12.1 if the holders Company's Board of Registrable Securities as a group; providedDirectors determines, in its reasonable discretion, that such registration and offering would adversely affect any financing, acquisition, corporate reorganization or other material transaction involving the Company and the Company promptly gives the Holders written notice of such determination specifying the grounds therefor and an estimate of the anticipated delay. If the Company shall so postpone the filing of a Registration Statement registration statement, a majority-in-interest of the requesting Holders shall not count have the right to withdraw the request for demand registration by giving written notice to the Company within 30 days after receipt of the notice of postponement. No registration shall be counted as a Long-Form Registration requested under the demand registration to which the Holders are entitled pursuant to this Section 2(a) 12.1 unless and until it has become effective and the holders requesting such registration Holders are able to register and sell at least a majority 90% of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities Warrant Shares requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Warrant Agreement (Showpower Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days The Holders shall have the right after the Closing Date, holders of IPO Date to request in writing (a majority of “Request”) (which request shall specify the Registrable Securities intended to be disposed of by such Holders and the intended method of distribution thereof, including in a Rule 415 Offering, if VMware is then outstanding may request registration under the eligible to register such Registrable Securities Act of all on Form S-3 (or any a successor form) for such offering) that VMware register such portion of their such Holders’ Registrable Securities pursuant as shall be specified in the Request (a “Demand Registration”) by filing with the Commission, as soon as practicable thereafter, but not later than the 45th day (or the 75th day if the applicable registration form is other than Form S-3) after the receipt of such a Request by VMware, a registration statement (a “Demand Registration Statement”) covering such Registrable Securities, and VMware shall use its reasonable best efforts to a have such Demand Registration Statement on Form S-1 become effective with the Commission concurrently with filing or any successor form thereto (eachas soon as practicable thereafter, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five the 90th day (5or the 105th day if the applicable registration form is other than Form S-3) after the receipt of such a Request, and, subject to Section 4.4, to keep such Demand Registration Statement Continuously Effective for a period of at least twenty-four (24) months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date on which such notice Demand Registration Statement is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with declared effective (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering for such shorter period which will terminate when all of the Registrable Securities covered by such Demand Registration Statement shall have been sold pursuant thereto), including, if necessary, by filing with the Commission a post-effective amendment or a supplement to the Demand Registration Statement or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by VMware for such Demand Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder; provided that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on period during which the initial request is given and shall use its best efforts to cause such Demand Registration Statement shall remain Continuously Effective shall, in the case of an Underwritten Offering, and subject to Section 4.4, be declared effective extended for such period (if any) as the underwriters shall reasonably require, including to satisfy, in the judgment of counsel to the underwriters, any prospectus delivery requirements imposed by the Commission as soon as practicable thereafter. The Company applicable law.
(b) VMware shall not be required obligated to effect a Long-Form Registration more than two (2) times Demand Registrations in any calendar year. For purposes of the preceding sentence, a Demand Registration shall not be deemed to have been effected (and, therefore, not requested for purposes of paragraph (a) above), (i) unless a Demand Registration Statement with respect thereto has become effective, (ii) if after such Demand Registration Statement has become effective, the holders offer, sale or distribution of Registrable Securities thereunder is prevented by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to any Holder and such effect is not thereafter eliminated or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than by reason of a failure on the part of any Holder. If VMware shall have complied with its obligations under ARTICLE IV, a right to a Demand Registration pursuant to this Section 4.1 shall be deemed to have been satisfied upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been sold to the underwriters or distributed pursuant to the Demand Registration Statement and (y) the date as of which such Demand Registration Statement shall have been effective for an aggregate period of at least twenty-four (24) months, in the case of a groupRule 415 Offering, or, in all other cases, for a period of at least 180 days following the effectiveness of such Demand Registration Statement.
(c) Any request made pursuant to this Section 4.1 shall be addressed to the attention of the secretary of VMware, and shall specify (i) the number of Registrable Securities to be registered (which shall be not less than the lesser of (x) 5% of the total number of Registrable Securities outstanding or (y) the remaining balance of the Registrable Securities then held by the Holders.
(d) VMware may not include in a Demand Registration pursuant to Section 4.1 hereof shares of VMware Capital Stock for the account of VMware or any Subsidiary of VMware, but, if and to the extent required by a contractual obligation, may, subject to compliance with Section 4.1(e), include shares of VMware Capital Stock for the account of any other Person who holds shares of VMware Capital Stock entitled to be included therein; provided, however, that a Registration Statement shall not count as a Long-Form Registration requested under if the Underwriters’ Representative of any offering described in this Section 2(a) unless 4.1 shall have informed VMware in writing that in its judgment there is a Maximum Number of shares of VMware Capital Stock that all Holders and until it has become effective and the holders requesting any other Persons desiring to participate in such registration are able to register and sell at least a majority of the Demand Registration may include in such offering, then VMware shall include in such Demand Registration all Registrable Securities requested to be included in such registration.
(b) After registration by the Registration Date, the Company shall use its best efforts Holders together with up to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited additional number of registrations under the Securities Act shares of all or VMware Capital Stock that any portion of their Registrable Securities pursuant other Persons entitled to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included participate in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their registration desire to include in such registration up to the Maximum Number that the Underwriters’ Representative has informed VMware may be included in such registration. The Company shall prepare registration without materially and file with (adversely affecting the success or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all pricing of the Registrable Securities such offering; provided that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested shares of VMware Capital Stock to be included in offered for the Shelf Registration. Upon receipt account of any all such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included Persons participating in such registration. The Company registration shall prepare and file with (or confidentially submit to) the Commission be reduced in a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective manner determined by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines VMware in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive monthssole discretion.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect No Holder may participate in any Underwritten Offering under Section 4.1 hereof and no other Person shall be permitted to distribute the Registrable Securities covered by their request participate in an underwritten offering, they shall so advise the Company as a part of their request made any such offering pursuant to Section 2(a)4.1 hereof unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under Section 2(b)4.1 hereof, or Section 2(c) each participating Holder and VMware and, except in the Company case of a Rule 415 Offering hereof, each other Person shall include such information in its notice be a party to the other holders of Registrable Securities. The Company shall select underwriting agreement with the investment banking firm or firms underwriters and may be required to act as make certain customary representations and warranties and provide certain customary indemnifications for the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority benefits of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registrationunderwriters; provided that the Company Holders shall not be permitted required to file make representations and warranties with respect to VMware or their business and operations and shall not be required to agree to any Registration Statement on Form S-8indemnity or contribution provisions less favorable to them than as are set forth herein.
Appears in 1 contract
Demand Registration. (ai) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding Rosenwald may request registration under the Securities Act of all ▇▇ ▇▇▇ ▇ortion of his or any portion of their Registrable Securities pursuant to a Registration Statement Paramount's Stockholder Shares (A) on Form S-1 or any successor form thereto not more than three (each, a “3) occasions ("Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(aRegistrations") unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor similar short-form thereto. At registration is then available for such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoregistration, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement and (B) on Form S-3 or any similar short-form Registration Statement registration (each, a “"Short-Form Registration” andRegistrations") if, collectively with each Long-Form Registration and Shelf Registration (only if, such form of registration is then available for such registration. All registrations requested pursuant to this Section 4(b) are referred to herein as defined below), a “"Demand Registration”). Registrations." Each request for a Short-Form Demand Registration shall specify the approximate number of Registrable Securities Stockholder Shares requested to be included in the Short-Form Registrationregistered. Upon Company's receipt of any a request for a Demand Registration, Company will promptly give written notice of the proposed Demand Registration to Enhance and the Other Stockholders and, expeditiously as possible, effect such Demand Registration and all such related qualifications and compliances as may be requested and as would permit or facilitate the sale and distribution of all Stockholder Shares as are specified in such request, . After Company has become subject to the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all reporting requirements of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and Exchange Act, Company shall use its best efforts to cause make Short-Form Registrations available for the sale of Stockholder Shares. Rosenwald shall be entitled to request an unlimited number of Short-▇▇▇▇ ▇▇▇istrations; provided that such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the form of registration is then available for sales of shares. Company shall have qualified for pay all Registration Expenses in connection with the use Long-Form Registrations and up to two Short-Form Registrations in any twelve-month period, including with respect to each such Demand Registration, the reasonable legal fees and expenses, up to a maximum of $20,000, of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of single law firm representing all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be Persons holding Stockholder Shares included in such registrationDemand Registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months 180 days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration registration in which the holders of Registrable Securities Stockholder Shares were permitted given piggyback rights pursuant to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included thereinSection 4(a). The Company Parent may postpone for up to ninety (90) 90 days the filing or the effectiveness of a Registration Statement registration statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose if Company's board of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board directors determines in its reasonable good faith judgment that such Demand Registration would reasonably be expected to have a material adverse effect on any proposal or Shelf Takedown would plan by Company to engage in any acquisition of assets (iother than in the ordinary course of business) materially interfere with a significant acquisitionor any merger, corporate organizationconsolidation, financingtender offer, securities offering reorganization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Acttransaction; provided, however, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once not exercise its right under this paragraph more than twice in any period of 12 consecutive months12-month period.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fii) The Company shall not include have the right to select the investment banker(s) and manager(s) to administer the offering in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that such investment banker(s) and manager(s) are reasonably acceptable to Company. In connection with each underwritten Demand Registration, Company agrees to enter into such customary agreements (including underwriting agreements) as the managing underwriter selected in the manner herein provided may request in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of Company's size and investment stature; provided that such agreement shall not contain any such provision applicable to Company shall be permitted to file any Registration Statement on Form S-8which is inconsistent with the provisions hereof.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty (180) after 180 days after the Closing DateIPO, holders each of a majority of Pernix, each 1992 Fund and each Whitebox Fund (the Registrable Securities then outstanding “Requesting Stockholders”) may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days following receipt thereof) deliver notice of such request to all other holders of Stockholders holding Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof Requesting Stockholders have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two three (23) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders Stockholders requesting such registration are able to register and sell at least a majority fifty percent (50%) of the Registrable Securities requested to be included in such registration.
(b) After the Registration DateIPO, the Company shall use its best reasonable efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities Requesting Stockholders shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days following receipt thereof) deliver notice of such request to all other holders of Stockholders holding Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof Stockholders have requested to be included in such Short-Form Registration within thirty sixty (3060) days after the date on which the initial request is given and shall use its best reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities Stockholders shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days following receipt thereof) deliver notice of such request to all other holders of Stockholders holding Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof Stockholders have requested to be included in such Shelf Registration within ten forty-five (1045) days after the date on which the initial request is given and shall use its best reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) months 180 days after the effective date of a previous Demand Long-Form Registration, Shelf Takedown Takedown, or a previous Piggyback Registration in which holders of the Stockholders holding Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority fifty percent (50%) of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety sixty (9060) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority Stockholders holding two thirds of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once twice in any period of 12 consecutive months.
(e) If the holders of the Stockholders holding Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) or Section 2(d), and the Company shall include such information in its notice to the other holders of Stockholders holding Registrable Securities. The Company Stockholders holding two thirds of the Registrable Securities initially requesting the Demand Registration or Shelf Takedown shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable . [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the holders of a majority of the Registrable Securities initially requesting the offeringomitted portions.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority Stockholders holding two-thirds of the Registrable Securities initially requesting included in such Demand Registration or Shelf Takedown, which consent shall not be unreasonably withheld or delayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Stockholders holding Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Stockholders holding Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof Stockholders on the basis of the number of Registrable Securities owned by each such holderStockholder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Stockholders Agreement (Pernix Therapeutics Holdings, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty and from time to time, the Purchaser shall have the right to request in writing (180which request shall specify the Shares intended to be disposed of and the intended method of distribution thereof) days that the Company register any or all of the Shares by filing with the SEC a registration statement covering such Shares (a "Demand Registration Statement"). Upon the receipt of such a request, the Company shall, not later than the 60th calendar day after the Closing Datereceipt of such a request, holders of cause to be filed a majority of Demand Registration Statement providing for the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities Shares which the Company has been so requested to be included register by the Purchaser, to the extent necessary to permit the disposition of such Shares in accordance with the Long-Form Registration. Upon receipt intended methods of any distribution thereof specified in such request, and shall use its best efforts to have such Demand Registration Statement declared effective by the Company shall promptly SEC as soon as practicable thereafter (but in no event later than five the 90th calendar day after the date of filing the Demand Registration Statement with the SEC) and to keep such Demand Registration Statement continuously effective for a period of time necessary following the date on which such Demand Registration Statement is declared effective to permit the sale of all the Shares covered by such Demand Registration Statement or such shorter period which will terminate when all the Shares covered by such Demand Registration Statement have been sold pursuant thereto (5including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Demand Registration Statement or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration form under the Securities Act used by the Company for such Demand Registration Statement or by the Securities Act, any state securities or "blue sky" laws, or any other rules and regulations thereunder).
(b) days following receipt thereofA Demand Registration Statement shall be deemed not to have become effective (and the related registration shall be deemed not to have been effected) deliver notice unless it has been declared effective by the SEC; provided, however, that if, after it has been declared effective, the offering of any Shares pursuant to such Demand Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court (other than any such stop order or injunction issued as a result of (i) the inclusion in such Demand Registration Statement of any information supplied to the Company for inclusion therein by the Purchaser or (ii) the conduct of the offering by the Purchaser or its agents) such Demand Registration Statement will be deemed not to have become effective.
(c) The Purchaser shall only be entitled to two effective Demand Registration Statements pursuant to Section 8.2(a); provided, however, that if the Purchaser requests a second Demand Registration Statement, (i) the Purchaser must propose to include in such Demand Registration Statement Shares representing a minimum of the least of (a) US $10 million in value, (b) fifty percent (50%) of the total number of Shares acquired by the Purchaser hereunder, and (c) the remainder of the Shares owned by the Purchaser, (ii) such Demand Registration Statement may not become effective within a period of six (6) months of the date of effectiveness of the registration statement covering any other registration of shares of Common Stock (other than a registration on Form S-8 or any comparable form), and (iii) the Company may postpone compliance with such request once, for a period not to all other holders exceed 90 days, if, at the time of Registrable Securities who shall then have five (5) days from the date such notice is given to notify request, the Board of Directors of the Company has adopted resolutions approving a registered offering of Common Stock by the Company and the Company is actively engaged in writing the process of their desire to be included in effecting such registration. The Company Purchaser may, at any time prior to the effectiveness of a Demand Registration Statement, revoke such demand by providing written notice to the Company. In such event at the option of the Purchaser either (i) such Demand Registration Statement shall prepare and file with be deemed to have become effective for purposes of the first sentence of this Section 8.2(c) or (or confidentially submit toii) the Commission Purchaser shall reimburse the Company for its out-of-pocket expenses incurred in the preparation, filing and processing of such Demand Registration Statement.
(d) If a Registration Statement registration pursuant to this Section 8.2 involves an underwritten offering of Common Stock, and the underwriter or the managing underwriter, as the case may be, of such underwritten offering shall inform the Company, the Purchaser and any other holders of shares of Common Stock requesting registration of Common Stock pursuant to registration rights granted by the Company to such holders (collectively, "Selling Stockholders"), on Form S-1 or any successor form thereto covering all before the date five days prior to the date then scheduled for such offering, that, in its opinion, the number of the Registrable Securities that the holders thereof have shares of Common Stock requested to be included in such Long-Form Registration within sixty (60) days after registration would materially adversely affect the date on which underwriter's ability to effect such offering, then the initial request Company will include in such registration only the amount of shares of Common Stock that the Purchaser is given and shall use its best efforts to cause such Registration Statement to so advised can be declared effective by sold without material adverse effect; provided, however, that the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; providedinclude in such required registration: FIRST, that a all securities initially proposed to be sold pursuant to such Demand Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless by the Purchaser; and until it has become effective and SECOND, the holders requesting such registration are able to register and sell at least a majority number of the Registrable Securities shares of Common Stock requested to be included in such registration.
(b) After registration by the Registration DateSelling Stockholders that the Purchaser is so advised can be sold without material adverse affect, allocated pro rata among the Company shall use its best efforts to qualify and remain qualified to register Selling Stockholders requesting such registration on the offer and sale basis of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities shares of Common Stock requested to be included in the Short-Form Registrationby all such Selling Stockholders. Upon receipt No securities other than shares of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have Common Stock requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as Purchaser and the Company Selling Stockholders, if any, shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities Statement without the prior written consent of the holders of a majority of Purchaser.
(e) If at any time or from time to time the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If Purchaser desires to sell Shares in an underwritten offering pursuant to a Demand Registration or Shelf Takedown involves an underwritten offering and Statement, the underwriters, including the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedownunderwriter, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated selected by the applicable Demand Registration; provided that the Company Purchaser and shall be permitted subject to file any Registration Statement on Form S-8the Company's approval, which will not be unreasonably withheld.
Appears in 1 contract
Demand Registration. (a) At any time beginning one after the date that is one-hundred eighty (180) days after the Closing Datedate of this Agreement, holders of a majority at least twenty percent (20%) of the Registrable Securities then outstanding and held by Note Holders or their assignees pursuant to Section 15 (“Note Holder Parties”) may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company Issuer shall promptly (but in no event later than five (5) days Business Days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days Business Days from the date such notice is given to notify the Company Issuer in writing of their desire to be included in such registration. Each holder of Registrable Securities who is a Note Holder Party agrees that the fact that such a notice has been delivered shall constitute confidential information. The Company Issuer shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Longfiled within seventy-Form Registration within sixty five (6075) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company The Issuer shall use its reasonable best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company Issuer shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities who are Note Holder Parties shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company Issuer shall promptly (but in no event later than five (5) days Business Days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days Business Days from the date such notice is given to notify the Company Issuer in writing of their desire to be included in such registration. The Company Issuer shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Shortfiled within forty-Form Registration within thirty five (3045) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter.
(c) At such time as . The Issuer shall not be required to effect a Long-Form Registration or a Short Form Registration more than five times in the Company shall have qualified aggregate for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities held by the Note Holder Parties as a group; provided, that a Registration Statement shall have not count as a Long-Form Registration requested under Section 2(a) or as a Short-Form Registration under this Section 2(b) unless and until it has become effective and the right holders requesting such registration are able to request registration under register and sell at least seventy-five percent (75%) of the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(dc) The Company Issuer shall not be obligated to effect any Demand Registration within three a hundred and twenty (3120) months days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority all of the shares of Registrable Securities requested to be included therein. The Company Issuer may postpone for up to ninety twenty (9020) days Business Days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Issuer’s Board of Directors determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the CompanyIssuer; (ii) require premature disclosure of material information that the Company Issuer has a bona fide business purpose for preserving as confidential; or (iii) render the Company Issuer unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company Issuer shall pay all registration expenses in connection with such registration. The Company Issuer may delay a Demand Registration or Shelf Takedown hereunder only once twice in any period of 12 twelve (12) consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company Issuer as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company Issuer shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Issuer, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(fe) The Company Issuer shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting included in such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company Issuer and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company Issuer shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities who are Note Holder Parties propose to sell, and (ii) second, the number of shares of Common Stock that the other holders of Registrable Securities propose to sell and (iii) third, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company Issuer and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Eco-Stim Energy Solutions, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) after not less than 180 days after from the Closing Dateclosing of the Share Exchange, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationregistered. The Company shall prepare and file with (or confidentially submit to) the Commission then cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty (60) 120 days after the date on which the initial request is given and shall use its best commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times time for the holders of Registrable Securities as a groupSecurities; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and remain effective for a period of up to two hundred seventy (270) days or, if earlier, until the holders requesting such registration are able to register and sell at least a majority of distribution contemplated in the Registrable Securities requested to be included in such registrationRegistration Statement has been completed.
(b) After In the Registration Dateevent that Form S-3 is available for the registration of the resale of Registrable Securities hereunder, the Company shall use its best efforts to qualify and remain qualified undertake to register the offer and sale resale of securities under the Registrable Securities Act pursuant to on Form S-3, provided that the Company shall maintain the effectiveness of all Registration Statements then in effect until such time as a Registration Statement on Form S-3 or any successor form thereto. At such time as covering the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act resale of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be has been declared effective by the Commission as soon as practicable thereafterand the prospectus contained therein is available for use.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months 120 days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority all of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 90 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company's Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting included in such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderHolder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty after six months from the date on which the Common Stock is first publicly traded (180) days after the Closing "Effective Date"), the holders of a majority at least 20% of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion part of their the Registrable Securities Securities. The Holders will collectively be entitled to request one (1) registration only, and the registration requested pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form this paragraph 1(a) is referred to herein as the "Demand Registration”). Each ." The request for a Long-Form Demand Registration shall be in writing and shall specify the number of Registrable Securities requested to be included in the Long-Form Registrationregistered by each Holder. Upon Within ten (10) days after receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver will give written notice of such request requested Demand Registration to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included and will include in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of registration the Registrable Securities that with respect to which the holders thereof have requested to be included in such Long-Form Registration Company receives written requests for inclusion therein within sixty fifteen (6015) days after the date on which giving (in accordance with paragraph 9(f) hereof) of the initial request is given and shall use its best efforts Company's notice (such additional selling Holders, together with the original requesting Holders, being collectively referred to cause such Registration Statement to be declared effective by as the Commission as soon as practicable thereafter"Requesting Holders"). The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall A registration will not count as a Long-Form the Demand Registration requested under this Section 2(a) unless and until it has become effective (unless such Demand Registration has not become effective due solely to the fault of one or more of the Requesting Holders). The Company will pay all Registration Expenses (as defined in Section 4 hereof) other than underwriting discounts or commissions, if any, and filing fees relating to the holders requesting Registrable Securities to be registered (collectively, the "Stockholder Costs") in connection with any registration initiated as a Demand Registration whether or not it has become effective. Upon the effectiveness of the Demand Registration, the Requesting Holders may thereafter sell the Registrable Securities covered by the effective Demand Registration from time to time, in their discretion, provided that they comply with all applicable federal and state securities laws, including, without limitation, prospectus delivery requirements; provided, further, that the Company shall not be obligated to keep such registration are able Demand Registration statement effective for a period longer than one year. The Company may, in its discretion, determine that the Demand Registration shall be underwritten by one or more underwriters. In such case, the managing underwriter (the "Underwriter") chosen by the Company shall be reasonably acceptable to register and sell at least a the majority in interest of the Requesting Holders. All of the Registrable Securities requested to be registered by the Requesting Holders shall be included in such registration.
(b) After the Registration DateDemand Registration. In addition to all of the Registrable Securities requested to be registered by the Requesting Holders, the Company shall use its best efforts may include in the Demand Registration additional securities (the "Additional Securities") to qualify and remain qualified be issued by it or to register be sold by other security holders; provided, that if the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as Underwriter, if any, advises the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify in writing that in its opinion the number of Registrable the Additional Securities requested to be included in such registration exceeds the Short-Form Registration. Upon receipt of any number which can be sold in an orderly manner in such requestoffering without materially adversely affecting the market for the Company's stock, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included will include in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all registration only such number of the Registrable Additional Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to Underwriter determines may be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”)included, the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises pro rata among the Company and the holders of Registrable the Additional Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registrationshares that they have requested to be registered or in accordance with contractual rights, the Company shall not file any if any, or other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated preference rights determined by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Century Electronics Manufacturing Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Datesix (6) month anniversary of an IPO, the holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 S-11 or any successor form thereto (each, each a “Long-Form Registration”); provided that the anticipated aggregate price to the public of the Registrable Securities for which registration is requested must be at least $15 million. Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission use reasonable best efforts to file, as soon as practicable, a Registration Statement on Form S-1 S-11 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60form) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective, and remains effective for the period required by this Agreement, and the holders Holders requesting such registration Registration Statement are able to register and sell at least a majority 75% of the Registrable Securities requested to be included in such registrationRegistration Statement; and, provided, further, that the Company shall not be required to effect a Long-Form Registration if the Company is, at the time the request for registration is made or within thirty (30) days thereafter, eligible to effect a Short-Form Registration, as provided in Section 2(b).
(b) After the Registration Datean IPO, the Company shall use its reasonable best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or S-3, at any successor form theretotime after the six (6) month anniversary of an IPO, the holders of Registrable Securities shall have the right right, in addition to the rights contained in Section 2(a), to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”); provided, however, that the Company shall not be obligated to effect any such Short-Form Registration (i) if the holders of Registrable Securities propose to sell Registrable Securities on Form S-3 at an anticipated aggregate price to the public of less than $1,000,000; or (ii) if the Company has effected two Short-Form Registrations within the twelve (12) month period immediately preceding the date of such request. Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as . With respect to any Short-Form Registration, the holders of a majority of the Registrable Securities may request the Company shall have qualified for to effect a registration of the use of Registrable Securities under a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(di) The Company shall not be obligated to effect any Demand Registration within three during the period that is sixty (360) months after days before the Company’s good faith estimate of the date of filing of, and ending 180 days after, the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. Securities.
(ii) The Company may postpone for up to ninety sixty (9060) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement if (a “Shelf Supplement”i) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration would be materially detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; effectiveness of such Registration Statement at such time and (ii) require premature disclosure of material information that the Company has furnishes to the holders of Registrable Securities requesting the registration a bona fide business purpose for preserving as confidential; certificate signed by the Chief Executive Officer of the Company and confirming such determination of the Board. The Company shall not delay a Demand Registration hereunder more than twice in any period of twelve consecutive months or less than sixty (60) days after the termination of the prior delay period.
(iii) render At any time prior to the Company unable to comply with requirements under the Securities Act or Exchange Act; providedeffective date of a Registration Statement, that in such event for a Demand Registration, the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to included therein may withdraw such request andby providing written notice of such withdrawal to the Company. A request, if such request for a Demand Registration is withdrawnso withdrawn by the holders, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and permitted pursuant to Section 2(a) or Section 2(b), as applicable, unless (i) such withdrawal arose out of the fault of the Company (in which case the Company shall be obligated to pay all registration expenses in connection with such registration. The withdrawn request), (ii) there occurs an event or series of related events that has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company may delay a Demand Registration from that known to the requesting holders at the time of their request or Shelf Takedown hereunder only once in any period (iii) the requesting holders reimburse the Company for all registration expenses of 12 consecutive monthssuch withdrawn request incurred through the date of such withdrawal.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which that are not Registrable Securities (other than Parity Securities), including any securities to be sold for the account of the Company, without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities and Parity Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common StockStock other than holders of Parity Securities) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities and Parity Securities proposed to be sold can be included in such offering, then the Registrable Securities and Parity Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities and Parity Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Landmark Apartment Trust of America, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after following the first Business Day following the Closing Date, holders of each Demand Investor may request in writing (a majority “Demand Notice”) that all or part of the Registrable Securities then outstanding may request registration held by such Demand Investor shall be registered under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Demand Registration”). Each request for , to the extent the Company is not then eligible to file a Long-Form Resale Shelf Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, Statement; provided that the Company shall promptly not be required to comply with this Section 1.9 unless (but in no event later than five (5i) days following receipt thereof) deliver notice of such request to all other holders of Demand Investor holds any Registrable Securities who shall then have five and (5ii) days from the date such notice is given to notify Demand Investor (A) is, or within three (3) months prior thereto was, an Affiliate of the Company in writing or (B) such Demand Investor beneficially owns a number of their desire shares of Common Stock issued or issuable to be included in such registrationDemand Investor upon conversion of the Preferred Stock that exceeds 3% of the Company’s outstanding Common Stock (after giving effect to any such conversion). The Company shall prepare and file with (effect the registration of all such or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all such part of the Demand Investor Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterpracticable; provided that (i) the Company shall not be required to effect any registration under this Section 1.9 within a period of ninety (90) days following the effective date of a previous registration for which such Demand Investor had an opportunity to participate, and (ii) this provision shall not apply if a Resale Shelf Registration Statement, as applicable, has been filed pursuant to Section 1.1 and is effective and available for use. The Company shall not be required to effect a Long-Form Registration (x) more than two (2) times registrations under this Section 1.9 requested by the applicable Demand Investor; or (y) any offering the anticipated gross proceeds of which shall be less than $300,000,000. Any Demand Investor may elect to withdraw from any offering for which such Demand Investor delivered its Demand Notice pursuant to this Section 1.9 by giving written notice to the Company and the underwriter(s) of its request to withdraw prior to the effectiveness of the registration statement filed with the SEC with respect to such Demand Registration. If such Demand Investor withdraws from a proposed offering relating to a Demand Registration, then such Demand Investor shall reimburse the Company for the holders of Registrable Securities as a group; provided, that a costs associated with the withdrawn Demand Registration Statement (in which case such registration shall not count as a Long-Form Demand Registration requested under provided for in this Section 2(a1.9) unless and until it has become effective and the holders requesting or such withdrawn registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time count as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) provided for the purpose in this Section 1.9. Notwithstanding any other provision of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request andthis Section 1.9, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities applicable Demand Investor in writing that in its reasonable and good faith opinion marketing factors require a limitation on the dollar amount or the number of shares of Common Stock proposed to be included in underwritten, then the amount of Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Investor Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering registered shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the reduced appropriately. The Company shall not file register securities for sale for its own account in any other Registration Statement without registration requested pursuant to this Section 1.9 unless permitted to do so by the written consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable such Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8Investor.
Appears in 1 contract
Demand Registration. (a) At Provided a successful IPO of the Company, at any time beginning one hundred eighty (180) after the earlier of 30 days after the Closing Datedate of Registration Date or 120 days after the date of this Agreement, holders of a majority of the Registrable Securities then outstanding Investors may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 F-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) 5 business days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) 5 business days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 F-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) 30 calendar days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, together/collectively with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) 5 business days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) 5 business days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) 30 calendar days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. In the event that (a1) At any time beginning a Qualified Placement in which the Company agrees to register with the SEC one or more securities issued in such Qualified Placement does not occur on or prior to the date that is one-hundred and eighty (180) days after the Closing Datedate of this Agreement, holders (2) the Company does not satisfy in a timely manner its obligations to investors in a Qualified Placement to register with the SEC all securities issued to investors in such Qualified Placement, including without limitation its obligations to file a registration statement with the SEC and to cause it to be declared effective, (3) the Company does not satisfy its obligations under Section 2(a)(ii) below, or (4) the Investor is not able to sell all of a majority of the its Registrable Securities then outstanding may request registration under the Securities Act because of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto an underwriter cutback described in Section 2(a)(iv) below (each, each such event being a “Long-Form RegistrationDemand Triggering Event”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly as soon as practicable (but in no event later than five any case within sixty (560) days following receipt thereofof the first occurrence of a Demand Triggering Event) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify “Filing Deadline”), the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission SEC a Registration Statement on Form S-1 or any successor form thereto covering all the resale of the Registrable Securities that in an amount at least equal to the holders thereof have requested to be included in such Long-Form Registration within sixty number of Registrable Securities (60) days after the date on which the initial request is given and shall use its best efforts to cause such “Demand Registration”). Such Registration Statement (the “Demand Registration Statement”) shall include the plan of distribution attached hereto as Exhibit A. The Demand Registration Statement also shall cover, to be declared effective by the Commission as soon as practicable thereafterextent allowable under the 1933 Act, such indeterminate number of additional Common Shares resulting from share splits, share dividends or similar transactions with respect to the Registrable Securities. The Demand Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided in accordance with Section 3(c) to the Investor and its counsel prior to its filing or other submission. Notwithstanding the foregoing, the Company shall not be required to effect a Long(A) file the Demand Registration Statement if the Company had completed the registration of securities in connection with an underwritten public offering that the Investor could have joined in accordance with Section 2(a)(ii) below within the prior one-Form Registration hundred and eighty (180) days or (B) file more than two (2) times for the holders of Registrable Securities as a group; provided, that a one Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a2(a)(i) unless and until it has become effective and the holders requesting such registration are Investor is not able to register and sell at least a majority dispose of all of its shares because of the Registrable Securities requested to be included provisions set forth in such registrationSection 2(a)(iii) below.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Baywood International Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Datesix (6) month anniversary of an IPO, the holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 S-11 or any successor form thereto (each, each a “Long-Form Registration”); provided that the anticipated aggregate price to the public of the Registrable Securities for which registration is requested must be at least $15 million. Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission use reasonable best efforts to file, as soon as practicable, a Registration Statement on Form S-1 S-11 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60form) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective, and remains effective for the period required by this Agreement, and the holders requesting such registration Registration Statement are able to register and sell at least a majority 75% of the Registrable Securities requested to be included in such registrationRegistration Statement; and, provided, further, that the Company shall not be required to effect a Long-Form Registration if the Company is, at the time the request for registration is made or within thirty (30) days thereafter, eligible to effect a Short-Form Registration, as provided in Section 2(b).
(b) After the Registration Datean IPO, the Company shall use its reasonable best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or S-3, at any successor form theretotime after the six (6) month anniversary of an IPO, the holders of Registrable Securities shall have the right right, in addition to the rights contained in Section 2(a), to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”); provided, however, that the Company shall not be obligated to effect any such Short-Form Registration (i) if the holders of Registrable Securities propose to sell Registrable Securities on Form S-3 at an anticipated aggregate price to the public of less than $1,000,000; or (ii) if the Company has effected two Short-Form Registrations within the twelve (12) month period immediately preceding the date of such request. Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as . With respect to any Short-Form Registration, the holders of a majority of the Registrable Securities may request the Company shall have qualified for to effect a registration of the use of Registrable Securities under a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(di) The Company shall not be obligated to effect any Demand Registration within three during the period that is sixty (360) months after days before the Company’s good faith estimate of the date of filing of, and ending 180 days after, the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. Securities.
(ii) The Company may postpone for up to ninety sixty (9060) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement if (a “Shelf Supplement”i) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration would be materially detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; effectiveness of such Registration Statement at such time and (ii) require premature disclosure of material information that the Company has furnishes to the holders of Registrable Securities requesting the registration a bona fide business purpose for preserving as confidential; certificate signed by the Chief Executive Officer of the Company and confirming such determination of the Board. The Company shall not delay a Demand Registration hereunder more than twice in any period of twelve consecutive months or less than sixty (60) days after the termination of the prior delay period.
(iii) render At any time prior to the Company unable to comply with requirements under the Securities Act or Exchange Act; providedeffective date of a Registration Statement, that in such event for a Demand Registration, the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to included therein may withdraw such request andby providing written notice of such withdrawal to the Company. A request, if such request for a Demand Registration is withdrawnso withdrawn by the holders, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and permitted pursuant to Section 2(a) or Section 2(b), as applicable, unless (i) such withdrawal arose out of the fault of the Company (in which case the Company shall be obligated to pay all registration expenses in connection with such registration. The withdrawn request), (ii) there occurs an event or series of related events that has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company may delay a Demand Registration from that known to the requesting holders at the time of their request or Shelf Takedown hereunder only once in any period (iii) the requesting holders reimburse the Company for all registration expenses of 12 consecutive monthssuch withdrawn request incurred through the date of such withdrawal.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which that are not Registrable Securities (other than Parity Securities), including any securities to be sold for the account of the Company, without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities and Parity Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common StockStock other than holders of Parity Securities) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities and Parity Securities proposed to be sold can be included in such offering, then the Registrable Securities and Parity Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities and Parity Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Landmark Apartment Trust of America, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Datedate of this Agreement, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Long- Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) 30 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) 30 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) 45 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter, provided, that the Company may use a Registration Statement on Form S-3 or any successor form thereto if the Company would qualify to use such form within 30 days after the date on which the initial request is given and the Company shall not be required to file such Registration Statement until it is so qualified. The Company shall not be required to effect a Long-Form Registration more than two (2) 3 times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority 75% of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) 20 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) 30 days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(dc) The Company shall not be obligated to effect any Demand Long-Form Registration or Shelf Registration with respect to fewer than 20% of the Registrable Securities then outstanding. The Company shall not be obligated to effect any Long-Form Registration within three (3) months 90 days after the effective date of a previous Demand Long-Form Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority all of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 130 days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) Registration Statement if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once twice in any period of 12 consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), ) or Section 2(c) ), and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration or Shelf Takedown shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting included in such Demand Registration or Shelf Takedown, which consent shall not be unreasonably withheld or delayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (AMERICAN POWER GROUP Corp)
Demand Registration. (a) At any time beginning one hundred eighty (180) after the earlier of 180 days after the Closing DateIPO, holders of a majority of the Registrable Securities then outstanding Investor may request registration under the Securities Act of all or any portion of their its Registrable Securities pursuant to a Registration Statement on Form S-1 F-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 F-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty two (602) days months after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. provided, that the Company may use a Registration Statement on Form F-3 or any successor form thereto if the Company would qualify to use such form within two months after the date on which the initial request is given and the Company shall not be required to file such Registration Statement in Form F-3 until it is so qualified. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority 50% of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datean IPO, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 F-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 F-3 or any successor form thereto, the holders of Registrable Securities Investor shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities with total value of no less than US$10 million, calculated with the closing price of the Company’s ADSs on the preceding day of each request, pursuant to a Registration Statement on Form S-3 F-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 F-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty two (302) days months after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 F-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities Investor shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten two (102) days months after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) months 180 days after the effective date of a previous Demand Long-Form Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority 50% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 30 days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a supplement Shelf Supplement for a Shelf Takedown (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities Investor initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities). The Company Investor initially requesting the Demand Registration or Shelf Takedown shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (RYB Education, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Datedate of this Agreement, holders of [a majority majority][1] of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion a percentage of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto thereto; provided that the aggregate offering price to the public, net of discounts and commissions, must exceed $2,000,000 (each, a “Long-Form Demand Registration”). Each request for a Long-Form Demand Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Demand Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five thirty (530) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five seven (57) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Demand Registration within sixty (60) days after the date on which the initial request is given and shall use its best ________________________________ 1 Subject to confirmation that Gaelic will hold a majority of the Registrable Securities. commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Demand Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months 180 days after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority twenty five percent (25%) of the shares of their Registrable Securities requested to be included thereinSecurities. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(ec) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(fd) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Equity Exchange Agreement (Daybreak Oil & Gas, Inc.)
Demand Registration. Upon written request (athe "Demand Notice") At any time beginning one hundred eighty from Holders representing beneficial ownership of an aggregate of more than fifty (18050%) days after the Closing Date, holders of a majority percent of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such requestSecurities, the Company shall promptly shall, at any time during the five year period commencing six (but in no event later than five 6) months after the final closing of the Financing (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall "Registration Rights Period"), prepare and file with the SEC by the later of (i) three (3) weeks after receipt of the Demand Notice (five weeks if the Company is not then eligible to use Form S-3 for the resale of securities) or confidentially submit to(ii) the Commission first day of the Registration Rights Period, a Registration Statement on Form S-1 or any successor form thereto under the 1933 Act covering all of the Registrable Securities that Securities, which are the holders thereof have requested to be included in subject of such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement registration statement to be declared become effective by the Commission as soon thereafter as practicable thereafterpossible. The Company shall not be required to effect a Long-Form Registration more than two (2) times for In addition, upon the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority receipt of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such requestNotice, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver give written notice of such request to all other record holders of Registrable Securities who shall then have five (5) days from the date that such notice registration is given to notify the Company in writing of their desire to be included in such registrationeffected. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown Statement such Registrable Securities for which it has received written requests to register by such other record holders within fifteen (i15) firstdays after the delivery of the Company's written notice to such other record holders (all of such participating holders being referred to herein as the "Requesting Holders"). Notwithstanding anything to the contrary contained herein, as long as the shares Company is current in the filing of Common Stock all of its reports (the "SEC Reports") required to be filed with the SEC under the Securities Exchange Act of 1934, as amended (the "1934 Act"), in the event that the holders of Registrable Securities propose Company is unable to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other a Registration Statement without under the consent of 1933 Act within the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that time period set forth in this Section 2.1 because current financial statements are not available, the Company shall be permitted to file any delay the filing of such Registration Statement on Form S-8until one (1) week after its filing of the SEC Report containing such current financial statements. The obligation of the Company under this Section 2.1 shall be limited to one (1) Registration Statement and shall not apply to any Registrable Securities that at such time are eligible for immediate resale pursuant to Rule 144(k) under the 1933 Act. The Company shall pay the expenses described in Section 6.1 for the Registration Statement filed pursuant to this Section 2.1, except for underwriting discounts and commissions and legal fees of the Requesting Holders, which shall be borne by the Requesting Holders.
Appears in 1 contract
Sources: Investor Registration Rights Agreement (Securecare Technologies Inc)
Demand Registration. (a) At any time beginning after one hundred eighty (180) days after the Closing Dateinitial public offering of the Company’s Common Stock pursuant to an effective registration under the Securities Act, the holders of a majority of the Registrable Securities then outstanding may request registration under notify the Securities Act of Company that they intend to offer or cause to be offered for public sale all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify covering the registration of at least such number of the Registrable Securities requested to be included having an anticipated aggregate offering price, net of underwriting discounts and commissions, of at least $10,000,000 in the Long-Form Registrationmanner specified in such request. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Investors holding Registrable Securities who shall then have five thirty (530) days from the date such notice is given 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 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. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall will use its best efforts to cause expeditiously effect (but in any event no later than thirty (30) days after such Registration Statement request) the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act, but only to be declared effective by the Commission as soon as practicable thereafter. The extent provided for in this Agreement; provided, however, that the Company shall not be required to effect registration pursuant to a Long-Form Registration request under this Section 2 more than two (2) times for the holders of the Registrable Securities as a group; provided. Notwithstanding anything to the contrary contained herein, that no request may be made under this Section 2 within ninety (90) days after the effective date of a Registration Statement 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 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 Long-Form Registration requested registration under this Section 2(a) unless and until it has become effective and the holders requesting registration statement relating to such registration are able to register and sell has been declared effective by the Commission at least the request of the initiating shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities requested 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 be included reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in such registrationaccordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown requested registration involves an underwritten public offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities such offering determines in writing that in its reasonable and good faith opinion that the number of shares of Common Stock proposed securities sought to be included in offered should be limited due to market conditions, then the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares number of Common Stock proposed securities to be included in such underwritten offeringpublic offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, exceeds that the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included excluded shall be determined in such Demand Registration or Shelf Takedown would adversely affect the price per share following order of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown priority: (i) firstpersons not having any contractual or other right to include such securities in the registration statement, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein securities held by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of Registrable Securities) having a majority of contractual, incidental “piggy back” right to include such securities in the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated statement, (iii) securities to be registered by the applicable Demand Registration; provided that the Company shall be permitted pursuant to file any Registration Statement on Form S-8.such registration statement and, if necessary, (iv)
Appears in 1 contract
Sources: Registration Rights Agreement
Demand Registration. (a) At HP may, at any time beginning one hundred eighty (180) days after the Closing Datetime, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion 30% or greater of their its Registrable Securities pursuant to a Registration Statement on Form S-1 or any similar or successor long-form thereto registration (each, a “"Long-Form Registration”)") or, if available, on Form ▇-▇, ▇-▇, or on any similar or successor short-form registration ("Short-Form Registration") provided that the total gross estimated proceeds of such offering are at least $2,000,000. Each HP shall be entitled to request for a two (2) Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Longand unlimited Short-Form RegistrationRegistrations. Upon receipt of any such request, All registrations requested pursuant to this Section 1(a) are referred to as "Demand Registrations". A Demand Registration will be a Short-Form Registration whenever the Company shall promptly is permitted to use any applicable short form.
(but in no event later than five (5b) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from If a Demand Registration is an underwritten public offering and the date such notice is given to notify managing underwriters advise the Company in writing that in their opinion the number of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have securities requested to be included in such Long-Form Registration within sixty (60) days after registration exceeds the date on number which can successfully be sold in such offering, the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting will include in such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify registration by HP and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire Common Stock requested to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested , to be included in pro rata on the basis of the number of shares of such Short-Form Registration within thirty (30) days after the date on securities for which the initial request is Company has been given and shall use its best efforts to cause written requests for inclusion therein by each such Registration Statement to be declared effective by the Commission as soon as practicable thereafterholder thereof.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three one hundred and eighty (3180) months after the effective date days of a previous Demand Registration, Shelf Takedown Registration or within one hundred and eighty (180) days of a previous Piggyback Registration registration in which holders of Registrable Securities were permitted HP was given piggyback rights pursuant to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included thereinSection 2. The Company may postpone for up to ninety one hundred and eighty (90180) days the filing or effectiveness of a Registration Statement registration statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that Company reasonably believes such Demand Registration would have an adverse effect on any proposal or Shelf Takedown would plan by the Company or any of its subsidiaries to engage in any acquisition of assets (iother than in the ordinary course of business) materially interfere with a significant acquisitionor any merger, corporate organizationconsolidation, financing, securities offering tender offer or other similar significant transaction involving the Company; (ii) require premature disclosure of material information that or to permit the Company has to avoid a bona fide business purpose for preserving as confidential; or special audit.
(iiid) render The Company shall have the Company unable right to comply with requirements under select the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request andinvestment banker(s) and manager(s), if such request for a Demand Registration is withdrawnany, such Demand Registration shall not count as one of to administer the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive monthsoffering.
(e) If the holders The Registration Expenses of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered HP will be paid by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringall Demand Registrations.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Smartserv Online Inc)
Demand Registration. (a) At any a. Within the period of time beginning on the ten (10) days following the filing of the Required Financials and ending on the day that is one hundred eighty and sixty (180160) days after the Closing Datedate of this Agreement, holders Holders which are not Affiliates of the Company (the “Non-Affiliate Holders”), holding at least a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “"Long-Form Registration”"). Each The request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days following receipt thereof) deliver notice of such request to all other holders Holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall use its commercially reasonable efforts to prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders Holders thereof have requested to be included in such Long-Form Registration within sixty thirty (6030) days after the date on which the initial request is given and shall use its best commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two one (21) times time (subject to Section 2(e)) for the holders Holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) 0 unless and until it has become effective and the holders Non-Affiliate Holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto▇. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At ▇▇ such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “"Shelf Registration Statement”"), the holders of Registrable Securities Non-Affiliate Holders shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “"Shelf Registration”"). Each The request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days following receipt thereof) deliver notice of such request to all other holders Holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall use its commercially reasonable efforts to prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders Holders thereof have requested to be included in such Shelf Registration within ten thirty (1030) days after the date on which the initial request is given and shall use its best commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
c. The Company shall use its commercially reasonable efforts to keep each Registration Statement continuously effective under the Securities Act until the earlier of (di) such time as all of the Registrable Securities covered by such Registration Statement have been sold by the Holders thereunder or pursuant to the Commission’s Rule 144 under the Securities Act or (ii) the date on which all Registrable Shares covered by such Registration Statement may be sold pursuant to the Commission’s Rule 144 under the Securities Act without any volume limitations or other restrictions pursuant to Rule 144 under the Securities Act (the “Effectiveness Period”). The Company shall not be obligated to effect any Demand Long-Form Registration within three ninety (390) months days after the effective date of a previous Demand Registration, Long-Form Registration or Shelf Takedown (as defined below) or a previous Piggyback Registration (as defined below) in which holders Holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety thirty (9030) days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a Shelf supplement for a Shelf Takedown (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “"Shelf Takedown”") if the Board Company determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders Non-Affiliate Holders of at least a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the a permitted Demand Registrations Registration hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once two times in any period of 12 consecutive months.
d. Each Holder agrees to furnish to the Company a completed “Selling Shareholder Questionnaire” in the form attached to this Agreement as Annex A or in a form mutually agreeable between the parties. At least five (e5) If Trading Days prior to the holders first anticipated filing date of a Registration Statement for any registration under this Agreement, the Company will notify each Holder of the information the Company requires from that Holder other than the information contained in the Selling Shareholder Questionnaire, if any, which shall be completed and delivered to the Company promptly upon request and, in any event, within three (3) Trading Days prior to the applicable anticipated filing date. Each Holder further agrees that it shall not be entitled to be named as a Selling Shareholder (as defined in Annex A) in the Registration Statement or use the Prospectus for offers and resales of Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect at any time, unless such Holder has returned to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company a completed and signed Selling Shareholder Questionnaire and a response to any requests for further information as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and described in the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedownprevious sentence. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders Holder of Registrable Securities returns a Selling Shareholder Questionnaire or a request for further information, in writing that in either case, after its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offeringrespective deadline, the Company shall use its commercially reasonable efforts at the expense of the Holder who failed to return the Selling Shareholder Questionnaire or to respond for further information to take such actions as are required to name such Holder as a selling security holder in the Registration Statement or any pre-effective or post-effective amendment thereto and to include (to the extent not theretofore included) in the Registration Statement the Registrable Securities identified in such Demand late Selling Shareholder Questionnaire or request for further information. Each Holder acknowledges and agrees that the information in the Selling Shareholder Questionnaire or request for further information as described in this Section 2(d) will be used by the Company in the preparation of the Registration or Shelf Takedown Statement and hereby consents to the inclusion of such information in the Registration Statement.
e. Notwithstanding anything to the contrary herein, at any time after any Registration Statement has been declared effective by the Commission, the Company may delay the disclosure of material non-public information concerning the Company if the disclosure of such information at the time is not, in the good faith judgment of the Company, in the best interests of the Company (a “Grace Period”); provided, however, the Company shall promptly (i) first, notify the shares Holders in writing (including via facsimile or other electronic transmission) of Common Stock the existence of material non-public information giving rise to a Grace Period (provided that the holders Company shall not disclose the content of Registrable Securities propose such material non-public information to sellthe Holders) or the need to file a supplement or post-effective amendment, as applicable, and the date on which such Grace Period will begin, and (ii) secondnotify the Holders in writing (including via facsimile or other electronic transmission) of the date on which the Grace Period ends; provided, further, that no single Grace Period shall exceed thirty (30) consecutive days, and during any 365 day period, the shares aggregate of Common Stock proposed all Grace Periods shall not exceed an aggregate of sixty (60) days (each Grace Period complying with this provision being an “Allowable Grace Period”). For purposes of determining the length of a Grace Period, the Grace Period shall be deemed to begin on and include the date the Holders receive the notice referred to in clause (i) above and shall end on and include the later of the date the Holders receive the notice referred to in clause (ii) above and the date referred to in such notice; provided, however, that no Grace Period shall be longer than an Allowable Grace Period.
▇. ▇▇ promptly as reasonably possible following the issuance of any Earn-Out Shares under the Exchange Agreement, the Company will prepare and file with the Commission a Registration Statement covering the resale of the applicable Earn-Out Shares for an offering to be included therein by any other Persons (including shares of Common Stock made on a continuous basis pursuant to be sold Rule 415, or if Rule 415 is not available for the account offers and sales of the Company and/or applicable Earn-Out Shares, by such other holders means of Common Stock) allocated among distribution of Earn-Out Shares as the Holders may reasonably specify (an “Earn-Out Registration Statement”). The Earn-Out Registration Statement shall be on Form S-1 (or such Persons in such manner as they may agree. If the managing underwriter determines that less than all of other form available to register for resale the Registrable Securities proposed to be sold can be included in such as a secondary offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other ). The Earn-Out Registration Statement without will be subject, as applicable, to the consent of same provisions as stated and contemplated in Section 2, and to the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities procedures as stated and contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8in Section 4.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing 60 month anniversary of the Effective Date, holders Other Investors that, together with the Affiliates of a majority such Other Investors, Beneficially Own in the aggregate at least 10% of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Other Investors holding Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the Other Investors that are holders thereof have requested to be included in such Long-Form Registration within sixty (60) 90 days after the date on which the initial request is given and shall use its commercially reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities Other Investors as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders Other Investors requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration first Public Offering after the Effective Date, the Company shall use its commercially reasonable best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, but in any event no earlier than the holders day immediately following the 60 month anniversary of the Effective Date, the Other Investors holding Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Other Investors holding Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the Other Investors that are holders thereof have requested to be included in such Short-Form Registration within thirty (30) 45 days after the date on which the initial request is given and shall use its commercially reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), but in any event no earlier than the day immediately following the 60 month anniversary of the Effective Date, Other Investors that are holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Other Investors holding Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the Other Investors that are holders thereof have requested to be included in such Shelf Registration within ten (10) 20 days after the date on which the initial request is given and shall use its commercially reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) six months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety 90 days from the date of the Board determination (90described below) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the CompanyCompany (a “Pending Transaction”); (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the Other Investors that are holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities Other Investors initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a3(a), Section 2(b3(b), or Section 2(c3(c) and the Company shall include such information in its notice to the other holders of Registrable SecuritiesOther Investors. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the Other Investors that are holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the Other Investors that are holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the Other Investors that are holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the Other Investors that are holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not not, other than in connection with a Pending Transaction, file any other Registration Statement without the consent of the Other Investors that are holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (ELAH Holdings, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after 18 months after the Closing Datedate of this Agreement, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, each a “"Long-Form Registration”"). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Longfiled within forty-Form Registration within sixty (60) five days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) three times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority 90% of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the The Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “"Short-Form Registration” " and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “"Demand Registration”"). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) ten days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) ten days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) 30 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Long Form Registration within three (3) months 90 days after the effective date of a previous Demand Registration, Shelf Takedown Long-Form Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority all of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 45 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company's Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 twelve consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty after (180x) days after the Closing Datedate of this Agreement, the Note Purchaser, or (y) January 1, 2018, the holders of a majority at least ten percent (10%) of the Registrable Securities issued pursuant to the Securities Purchase Agreement then outstanding and held by Holders or their assignees pursuant to Section 18 (the Holder(s) permitted to make a request under clause (x) or (y), individually, a “Demand Holder” and collectively, the “Demand Holders”), may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required by the requesting party(ies) to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company Issuer shall promptly (but in no event later than five (5) days Business Days following receipt thereof) deliver notice of such request to all other holders Holders (if the request was made by less than all of Registrable Securities them) who shall then have five (5) days Business Days from the date such notice is given to notify the Company Issuer in writing of their desire to be included in such registration. Each Holder who is a Demand Holder or who received notice under this Section 2(a) agrees that the fact that such a notice has been delivered shall constitute confidential information. The Issuer shall cause a Registration Statement on Form S-1 (or any successor form) to be filed within ninety (90) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as soon as practicable thereafter.
(b) The Issuer shall use its reasonable best efforts to be and remain qualified to register securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At any time when the Issuer is qualified for the use of a Registration Statement on Form S-3, Holders who are Demand Holders shall have the right to request registrations of their Registrable Securities on Form S-3 or any similar short-form registration (each a “Short-Form Registration” and, together with each Long-Form Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be registered. Upon receipt of any such request, the Issuer shall promptly (but in no event later than five (5) Business Days following receipt thereof) deliver notice of such request to all other Holders who shall then have five (5) Business Days from the date such notice is given to notify the Issuer in writing of their desire to be included in such registration. The Company Issuer shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty (60) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter. The Company Issuer shall not be required to effect a Long-Form Registration or a Short Form Registration more than two five (25) times in the aggregate for the holders of Registrable Securities Holders as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under Section 2(a) or as a Short-Form Registration under this Section 2(a2(b) (x) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority seventy-five percent (75%) of the Registrable Securities requested to be included in such registration.
, or (by) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities if requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterNote Purchaser.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company Issuer shall not be obligated to effect any Demand Registration within three a hundred and twenty (3120) months days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities Holders were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority all of the shares of Registrable Securities requested to be included therein. The Company Issuer may postpone for up to ninety twenty (9020) days Business Days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Issuer’s Board of Directors determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the CompanyIssuer; (ii) require premature disclosure of material information that the Company Issuer has a bona fide business purpose for preserving as confidential; or (iii) render the Company Issuer unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders Holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company Issuer shall pay all registration expenses in connection with such registration. The Company Issuer may delay a Demand Registration or Shelf Takedown hereunder only once twice in any period of 12 twelve (12) consecutive months.
(ed) If the holders Holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company Issuer as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company Issuer shall include such information in its notice to the other holders of Registrable SecuritiesHolders. The Company Holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Issuer, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld, conditioned or delayed.
(fe) The Company Issuer shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders Holders of a majority of the Registrable Securities initially requesting included in such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company Issuer and the holders Holders of Registrable Securities to be included in that Demand Registration in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company Issuer shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders Holders of Registrable Securities who are Demand Holders propose to sell, and (ii) second, the number of shares of Common Stock that the other Holders of Registrable Securities propose to sell and (iii) third, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company Issuer and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof Holders thereof, giving effect to the priorities set forth in the immediately preceding sentence, on the basis of the number of Registrable Securities owned by each such holderHolder.
(f) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(g), if the SEC or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Issuer used reasonable best efforts to advocate with the SEC for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) First, the Issuer shall reduce or eliminate any securities to be included other than Registrable Securities; and
(ii) Second, the Issuer shall reduce Registrable Securities held by Holders (applied, in the case that there is more than one Holder, to such Holders on a pro rata basis based on the total number of Registrable Securities held by such Holders). In the event of a cutback hereunder, the Issuer shall give each Holder at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Issuer amends the initial Registration Statement in accordance with the foregoing, the Issuer will use its best efforts to file with the SEC, as promptly as allowed by SEC or SEC Guidance provided to the SEC or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available to register for resale those Registrable Securities that were not registered for resale on the initial Registration Statement, as amended.
(g) Upon If: (i) a Registration Statement pursuant to a Demand Registration request is not filed on or prior to the date required by Section 2(a) or 2(b), as applicable, or (ii) the Issuer fails to file with the SEC a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the SEC pursuant to the Securities Act, within ten Trading Days of the date that the Issuer is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, the Issuer fails to file a pre-effective amendment and otherwise respond in writing to comments made by the SEC in respect of such Registration Statement within twenty (20) calendar days after the receipt of any Demand Registration, comments by or notice from the Company shall not file any other SEC that such amendment is required in order for such Registration Statement without the consent of the holders of to be declared effective, or (iv) a majority Registration Statement registering for resale all of the Registrable Securities requesting registration is not declared effective by the SEC within one hundred fifty (150) days, in the case of a Long-Form Registration Statement, or sixty (60) days, in the case of a Short-Form Registration Statement, after the SEC has notified the Issuer it will not review the Registration Statement or that it has no further comments to the Registration Statement, or (v) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than fifteen (15) consecutive calendar days or more than an aggregate of thirty (30) calendar days (which need not be consecutive calendar days) during any twelve (12)-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such ten (10) Trading Day period is exceeded, and for purpose of clause (iii) the date which such twenty (20) calendar day period is exceeded, and for purpose of clause (v) the date on which such fifteen (15) or thirty (30) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the consummation applicable Event is cured, the Issuer shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of one and one half percent (1.5%) multiplied by the aggregate per share purchase price paid by such Holder pursuant to the Securities Purchase Agreement or the conversion price of the sale Common Stock issued upon conversion of the Notes, as applicable,. If the Issuer fails to pay any partial liquidated damages pursuant to this Section in full within fifteen (15) days after the date payable, the Issuer will pay interest thereon at a rate of twelve percent (12%) per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. In the event that the Issuer registers some but not all of the Registrable Securities, the one and one half percent (1.5%) of liquidated damages referred to above for any monthly period shall be reduced to equal the percentage determined by multiplying one and one half percent (1.5%) by a fraction, the numerator of which shall be the number of Registrable Securities contemplated by for which there is not an effective Registration Statement at such time and the applicable Demand Registration; provided that the Company denominator of which shall be permitted to file any Registration Statement on Form S-8the number of Registrable Securities at such time.
Appears in 1 contract
Sources: Registration Rights Agreement (Eco-Stim Energy Solutions, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority filing of the Registrable Securities then outstanding may Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012, if the Company shall receive a written request registration from Subscribers holding not less than fifty-one percent (51%) of the shares of Common Stock purchased in this Offering that the Company file a Registration Statement under the Securities Act covering the Registrable Securities, then the Company shall, within ten (10) days of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver give written notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given Subscribers, and use commercially reasonable efforts to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering the resale of all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after registered by the date on which the initial request is given and shall use its best efforts to cause such Registration Statement Subscribers for an offering to be declared effective by made on a continuous basis pursuant to Rule 415 (“Demand Registration”). Notwithstanding anything else contained herein, the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form such Demand Registration more than two (2i) times for if such Demand Registration is received after the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(athird (3rd) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority anniversary of the Registrable Securities requested Final Closing of this Offering or (ii) if the Company is engaged in or proposes to be included engage in an underwritten public offering of its securities during the period starting with the date that is 30 days prior to the Company’s good faith estimate of the date of filing of, and ending on the date that is 180 days following the effective date of the registration statement pertaining to such registrationunderwritten public offering.
(b) After Until the third anniversary of the Final Closing, the Company shall be required to file a Registration Statement registering all of the Registrable Securities as soon as commercially possible if the Company shall fail for any reason to satisfy the current public information requirement under Rule 144(c).
(c) Upon receipt of a Demand Registration or if the Company satisfies the conditions set forth under Section 5.2(b) above, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-1 or S-3 (except if the Company is then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on such form in accordance herewith). In the event the amount of Registrable Securities which may be included in the Registration DateStatement is limited due to SEC Guidance (provided that, the Company shall use diligent efforts to advocate with the Commission Staff for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, the SEC’s interpretive responses regarding Delayed or Continuous Offering and Sale of Securities no. 612.09) the Company shall use its best efforts to register such maximum portion of the Registrable Securities as permitted by SEC Guidance. Subject to the terms of this Agreement, the Company shall use its best efforts to qualify and remain qualified cause a Registration Statement to register the offer and sale of securities be declared effective under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as promptly as possible after the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretofiling thereof, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no any event later than five (5) days following receipt thereof) deliver notice of such request prior to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given applicable Effectiveness Date, and shall use its best efforts to cause keep such Registration Statement to be declared continuously effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto until the earlier of (a “Shelf Registration Statement”), the holders of i) all Registrable Securities shall covered by such Registration Statement have been sold, (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144, without the right requirement for the Company to request registration be in compliance with the current public information requirement under Rule 144, (iii) not required to be registered in reliance upon the exemption in Section 4(1) under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis Act, in either case as determined by the counsel to the Company pursuant to Rule 415 under a written opinion letter to such effect, addressed and acceptable to the Securities Act Transfer Agent and the affected Subscribers or any successor rule thereto (a iv) the third year anniversary of the Initial Closing (the “Shelf RegistrationEffectiveness Period”). Each request for Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a Shelf Registration shall specify limitation on the number of Registrable Securities requested permitted to be included in registered on a particular Registration Statement (and notwithstanding that the Shelf Registration. Upon receipt Company used diligent efforts to advocate with the Commission for the registration of any such requestall or a greater portion of Registrable Securities), the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders number of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in registered on such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the will first be reduced by Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective represented by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that purchased by the holders of Subscribers pursuant to this Agreement and second by Registrable Securities propose represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated Holders on a pro rata among the respective holders thereof basis based on the basis of the total number of Registrable Securities owned unregistered Warrant Shares held by each such holder.
(g) Upon receipt Holders). In the event of any Demand Registrationa cutback hereunder, the Company shall not file any other Registration Statement without give the consent of Holder at least 3 trading days prior written notice along with the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted calculations as to file any Registration Statement on Form S-8such Holder’s allotment.
Appears in 1 contract
Sources: Subscription Agreement (Intellicell Biosciences, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date12 month anniversary of the final Warrant Date and provided the Registrable Securities, upon exercise, are not otherwise qualified for sale under an exemption available under the Securities Act, holders of a majority an aggregate of the Registrable Securities then outstanding may request registration under the Securities Act 50% of all or any portion of outstanding Placement Agent Warrants may exercise their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request "DEMAND REGISTRATION RIGHTS" as described herein for a Long-Form Registration shall specify registration covering the number public sale of Registrable Securities requested to be included in the Long-Form Registrationhereunder. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as As soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify file a registration statement with respect to the Registrable Securities which holders have requested to be registered and remain qualified obtain the effectiveness thereof, and to register the offer take all other action necessary under any federal or state law or regulation to permit such Registrable Securities to be sold or otherwise disposed of, and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified maintain such compliance with each such federal and state law and regulation for the use of a Registration Statement on Form S-3 period necessary for such holders to effect the proposed sale or any successor form thereto, other disposition; PROVIDED THAT the holders of Registrable Securities Company shall have the right to request an unlimited number of registrations delay such registration under the Securities Act of all or certain circumstances for up to 90 days during any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration12 month period. The Company shall prepare and file with (be required to effect one registration or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis qualification pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”)this Section 5.2, the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after a registration during the effective six month period commencing with the date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 any other registration under the Securities Act or in which Registrable Securities were registered.
(b) The managing underwriter and the co-manager (if any), and the independent price required under the rules of the NASD (if any), of the offering pursuant to any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving registration under this Section 5.2 shall be selected and obtained by the Company; .
(iic) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay any registration under this Section 5.2 for not more than 90 days if management determines in good faith that such delay is necessary to consummate a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) pending transaction, If the registration is delayed, management will notify the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request Placement Agent Warrants within three weeks after receipt of notice specified in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c5.2(a) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company delay but shall not include in be required to provide any Demand Registration information to any holder regarding the existence or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt nature of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8pending transactions.
Appears in 1 contract
Sources: Placement Agent Warrant Agreement (Coronado Industries Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Dateone-year anniversary of this Agreement, holders of at least a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion up to 25% of their the aggregate Registrable Securities held by all holders of Registrable Securities at that time pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall will then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration; provided, however, in the event the aggregate amount of Registrable Securities requested to be included by holders of Registrable Securities exceeds 25% of the aggregate Registrable Securities held by all holders of Registrable Securities at that time, the number of Regsitrable Securities to be included by each such holder shall be allocated among them as agreed upon by such holders. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty ninety (6090) days after the date on which the initial request is given and shall use its best reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times once for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a2.1(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority 50% of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the The Company shall use its best reasonable efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of at least a majority of the Registrable Securities then outstanding shall have the right to request an unlimited number of registrations a single registration under the Securities Act of all or any portion up to 25% of their the aggregate Registrable Securities held by all holders of Registrable Securities at that time pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty sixty (3060) days after the date on which the initial request is given and shall use its best reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, provided that in such event the holders of at least a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Dolphin Digital Media Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days As soon as possible after [the Closing Dateissuance of the Equity Shares and the Warrant], holders [the conversion of all or part of the Debenture], the Company shall file a majority Registration Statement with the SEC covering the resale of all of the Registrable Securities. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. In the event that the Company is unable to register for resale under Rule 415 all of the Registrable Securities on the Registration Statement that it has agreed to file pursuant to Section 2(a) due to limits imposed by the SEC’s interpretation of Rule 415, then outstanding may request registration under the Securities Act of all or any Company shall be obligated to include in such Registration Statement (as withdrawn and refiled if necessary to comply with Rule 415) only such limited portion of their the Registrable Securities pursuant as the SEC shall permit. Any exclusion of Registrable Securities shall be made pro rata among the Holders in proportion to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in held by such Holders. Any request for acceleration of the Long-Form RegistrationRegistration Statement shall seek effectiveness at 5:00 p.m., New York time, or as soon thereafter as practicable. Upon receipt of any such request, the The Company shall notify the Holders by facsimile or e-mail as soon as promptly practicable, and in any event, prior to 9:00 a.m., New York time, on the day after any Registration Statement is declared effective, shall file with the SEC under Rule 424 a final prospectus as promptly as practicable, and in any event, prior to 9:00 a.m., New York time, on the day after any Registration Statement is declared effective.
(b) The Company shall prepare, and, as soon as practicable but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and Additional Filing Deadline, file with (or confidentially submit to) the Commission a SEC an Additional Registration Statement on Form S-1 (or any successor form thereto Form S-3, if applicable) covering the resale of all of the Registrable Securities that not previously registered in a Registration Statement or a preceding Additional Registration Statement as the holders thereof have requested case may be. To the extent the SEC does not permit the aforesaid Registrable Securities to be included in registered on an Additional Registration Statement, the Company shall file Additional Registration Statements successively trying to register on each such Long-Form Additional Registration within sixty (60) days after Statement the date on which maximum number of remaining Registrable Securities until the initial request is given and resale of the remaining Registrable Securities have been registered with the SEC. The Company shall use its best commercially reasonable efforts to cause such have each Additional Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; providedpracticable, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days the Additional Effectiveness Deadline. By 9:00 a.m. New York time on the business day following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify Additional Effective Date, the Company shall file with the SEC in writing of their desire accordance with Rule 424 the final prospectus to be included used in connection with sales pursuant to such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Additional Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterStatement.
(c) At such time as the Company shall have qualified for the use of If a Registration Statement or Additional Registration Statement covering the Registrable Securities is not filed with the SEC on Form S-3 or prior to the Filing Deadline or Additional Filing Deadline, respectively, the Company will make pro rata payments to each Holder, as liquidated damages and not as a penalty, in an amount equal to 1.25% of the principal amount of the Debenture for each 30-day period or pro rata for any portion thereof following the Filing Deadline or Additional Filing Deadline for which no Registration Statement or Additional Registration Statement, as the case may be, is filed with respect to the Registrable Securities. If a Registration Statement or Additional Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) 10 (15) business days after the SEC shall have informed the Company that there will be no further comments on the Registration Statement, or the then appropriate form Additional Registration Statement, as the case may be, (ii) the Effective Deadline or (iii) an Additional Effectiveness Deadline (either (i), (ii) or (iii) shall be deemed the “Effectiveness Deadline”), the Company will make pro rata payments to each Holder, as liquidated damages and not as a penalty, in an amount equal to 1.25% of the a the principal amount of the Debenture for each 30-day period or pro rata for any portion thereof following the Effectiveness Deadline for which no Registration Statement is declared effective with respect to the Registrable Securities; provided, however, that no such damages shall apply (i) that would exceed an offering aggregate 10% of the principal amount of the Debenture, (ii) during any period when the Holder is subject to any lock-up agreement or similar arrangement, (iii) to the extent the delay is caused by any act or omission of the Holder in furnishing information needed to register the shares, and (iv) to the proportionate extent issued shares or underlying shares are eligible to be made on a delayed or continuous basis pursuant to sold under Rule 415 144 promulgated under the Securities Act without any volume or any successor rule thereto (a “Shelf Registration Statement”)holding period limitation. Such payments shall constitute the Holders exclusive monetary remedy for such events, the holders of Registrable Securities but shall have not affect the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested Holders to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included thereinseek injunctive relief. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown Such payments shall be entitled made to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses each Holder in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.cash.2.5
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty following the date that is six (1806) days months after the Closing DateCompany’s Common Shares are listed for trading on NASDAQ but prior to the expiration of the Effectiveness Period; provided, holders that the Holders continue to hold at least 66 2/3% of the Registrable Securities originally purchased pursuant to the Subscription Agreement, the Holders of a majority of the then outstanding Registrable Securities then outstanding may request that the Company effect the registration under the Securities Act of all or any portion of their the Registrable Securities pursuant to (a “Registration Request”) of an amount of the Common Shares with a market value at the time such Registration Request is made of at least Cdn$10,000,000. If the Company receives a Registration Statement on Form S-1 or any successor form thereto (eachRequest, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, then the Company shall promptly (but in no event later than five i) within ten (510) days following of the receipt thereof) deliver of such Registration Request, give written notice of such request to all other holders Holders describing the terms of such registration and, if applicable, the underwriting and (ii) as soon as practicable cause to be prepared and filed with the SEC a Registration Statement providing for the resale of all Registrable Securities who shall then have five (5) days from the date such notice is given which Holders request to notify be registered; provided, however, that the Company shall be permitted to delay for one or more periods (each such period, a “Delay”) any such Registration Request in writing the event that (x) the Company is engaged in any activity or transaction or preparations or negotiations for any activity or transaction that the Company desires to keep confidential for business reasons, if the Company determines in good faith that the public disclosure requirements imposed on the Company under the Securities Act in connection with the Registration Statement would require disclosure of their desire such activity, transaction, preparations or negotiations, (y) any financial statements or other information required to be included or incorporated by reference in the Registration Statement are not available, or (z) the Company has timely filed a post-effective amendment to the Registration Statement to satisfy its undertakings under Item 512 of Regulation S-K promulgated under the Securities Act or to include any prospectus required by Section 10(a)(3) of the Securities Act and such registrationamendment shall have not yet been declared effective by the Commission. The Company agrees to file such amendment, supplement or report or otherwise disclose such additional information as soon as reasonably practicable following such notice of such Delay. Notwithstanding the foregoing, the Company agrees that no Delay shall prepare be for a period of longer than 40 days and file with no Delay or Delays shall be for an aggregate in any 365-day period of longer than 120 days; provided that any Delay of up to 20 days pursuant to clause (or confidentially submit toz) of this Section 2(a) shall not count toward the Commission a calculation of such periods. The Registration Statement may be on Form S-1 or any successor other applicable form thereto covering all of available to the Registrable Securities that Company. The Company shall cause the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by under the Commission Securities Act as soon promptly as practicable thereafterpossible after the filing thereof. The Company shall not be required to effect a Long-Form Registration more than two (2) times for keep the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become continuously effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a until the date when all Registrable Securities covered by such Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretobeen sold, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later longer than five twelve (512) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationmonths. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand file and cause to become effective more than two (2) Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Statements pursuant to this Section 2(a). A Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority Statement shall not be counted for purposes of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a foregoing until such time as such Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for has been declared effective by the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority SEC and all of the Registrable Securities initiating offered pursuant to such Demand Registration or Shelf Takedown shall be entitled Statement are sold thereunder upon the price and terms offered. Notwithstanding anything to withdraw such request andthe contrary contained herein, if such request for a Demand the SEC specifically prohibits the Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and Statement from including all Registrable Securities (“SEC Guidance”) (provided that the Company shall pay advocate with the SEC for the registration of all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders maximum number of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered permitted by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed SEC Guidance to be included in such underwritten offeringRegistration Statement, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offeringmaximum number, the “Rule 415 Amount”), then the Company shall include will not be in breach of this provision by following such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sellSEC Guidance, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among will file such Persons in additional Registration Statements at the earliest practicable date on which the Company is permitted by SEC Guidance to file such manner as they may agree. If additional Registration Statements related to the managing underwriter determines that less than Registrable Securities, each registering the Rule 415 Amount, seriatim, until all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderhave been registered.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Aurinia Pharmaceuticals Inc.)
Demand Registration. (a) At any time beginning one hundred eighty Upon receipt of a written request (180) a "Registration Request"), delivered not earlier than 180 days after the Closing Date, holders of a majority date of the closing of the initial public offering by the Company of the Common Stock, from Holders holding at least 50% of the aggregate of the number of Shares of Registrable Securities Stock then outstanding may request (assuming for purposes of such calculation the conversion of all outstanding shares of Preferred Stock), the Company shall (i) promptly give written notice of the Registration Request to all non-requesting Holders and (ii) prepare and file with the Commission, within 60 days after its receipt of such Registration Request, a registration statement for the purpose of effecting a Registration of the sale of all Registrable Stock by each of the Holders which submitted such Registration Request and any other Holder who requests to have such Holder's Registrable Stock included in such registration statement within 10 days after receipt of notice by such Holder of the Registration Request; provided, however, that the Company will not be required to effect the Registration of Registrable Stock unless the Registrable Stock is offered at an aggregate offering price of not less than $3,000,000. The Company shall use its reasonable best efforts to effect such Registration as soon as practicable (including, without limitation, the execution of an undertaking to file post-effective amendments and appropriate qualification under applicable state securities laws). In the event such Registration Request is delivered on or before the first anniversary of the closing of the Company's initial public offering of the Common Stock, any offering effected pursuant to the Registration related to such Registration Request shall be an underwritten offering. In the event such Registration Request is delivered after the first anniversary of the closing of the Company's initial public offering of the Common Stock and the Company is eligible to register such Registrable Stock on a continuous basis under Rule 415 of the Securities Act of all or any portion of their Registrable Securities pursuant to by filing a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such requestS-3, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice shall, at the request of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause requesting Holders, effect such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to on a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationRule 415. The Company shall prepare and file with use its reasonable best efforts to keep such Registration continuously effective until the earlier of (or confidentially submit toi) the Commission a Registration Statement second anniversary of the date hereof, (ii) the date on Form S-3 which all Registrable Stock have been sold pursuant to such registration statement or any successor form thereto covering Rule 144 and (iii) the date on which all of the Registrable Securities Stock held by such Holder may be sold in any consecutive three month period in accordance with Rule 144; provided, however, that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after maintain the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a any Registration Statement that is not effected under Rule 415 for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose period in excess of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition90 days; provided, corporate organizationfurther, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has shall not be obligated to take any action to effect any such Registration, qualification or compliance pursuant to this Section 2 in any particular jurisdiction in which the Company would be required to (x) execute a bona fide business purpose for preserving as confidential; general consent to service of process in effecting such Registration, qualification or compliance unless the Company is already subject to service in such jurisdiction or (iiiy) render qualify as a foreign corporation in any jurisdiction in which the Company unable to comply with requirements under is not then qualified. Notwithstanding the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offeringforegoing, the Company shall include in have the right (the "Suspension Right") to defer such Demand Registration filing (or Shelf Takedown (isuspend sales under any filed registration statement or defer the updating of any filed registration statement and suspend sales thereunder) firstfor a period of not more than 120 days during any one-year period ending on December 31, if the shares of Common Stock that Company furnishes to the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein Holders a certificate signed by an executive officer or any other Persons (including shares of Common Stock to be sold for the account director of the Company and/or other holders of Common Stock) allocated among such Persons stating that, in such manner as they may agree. If the managing underwriter determines that less than all good faith judgment of the Registrable Securities proposed Company, it would be detrimental to be sold can be included in the Company and its stockholders to file such offering, then registration statement or amendment thereto at such time (or continue sales under a filed registration statement) and therefore the Registrable Securities that are included in Company has elected to defer the filing of such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderregistration statement (or suspend sales under a filed registration statement).
(gb) Upon receipt of any Demand Registration, the The Company shall is not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted required to file any Registration Statement on Form S-8effect more than one (1) Registrations pursuant to this Section 2.
Appears in 1 contract
Demand Registration. (ai) At any time beginning one hundred eighty commencing nine (1809) days after months following the Closing Date, holders closing of a majority Qualifying PO, if (but only if) the Company is not qualified to register securities under the Securities Act pursuant to a Registration Statement on Form S-3 (or any successor form thereto) as set forth in this clause (a)(i) below, then the Holder(s) of at least 51% of the Registrable Securities then outstanding Warrants and/or the Warrant Shares (the “Majority Holders”) may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement the Warrant Shares on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested Warrant Shares required to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registrationregistered. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form) to be filed within 90 days after the date on which the initial request is given and shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the SEC, subject to any cut backs requested by the SEC. The Company shall not be required to effect a Long-Form Registration more than two times by the Majority Holders.
(ii) At all times after a Qualifying PO, the Company shall use its commercially reasonable efforts to qualify and remain qualified to register securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto covering all thereto. At any time commencing nine (9) months after such time as the Company shall have qualified for the use of a Registration Statement on Form S-3, the Registrable Securities that Majority Holder(s) shall have the holders thereof have right to request registrations of Warrant Shares on Form S-3 or any similar short-form registration (each a “Short-Form Registration” and, together with each Long-Form Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Warrant Shares requested to be included in such Long-registered and shall be subject to any cut backs requested by the SEC. The Company shall cause a Registration Statement on Form Registration S-3 (or any successor form) to be filed within sixty (60) 45 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission SEC as soon as reasonably practicable thereafter. The Company shall not be required , subject to effect a Long-Form Registration more than two (2) times for any cut backs requested by the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registrationSEC.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(diii) The Company shall not be obligated to effect any Demand Long-Form Registration within three one-hundred and twenty (3120) months days after the effective date of a previous Demand Long-Form Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 60 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board of Directors determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once two times in any period of 12 twelve consecutive months.
(eiv) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown Majority Holders elect to distribute the Registrable Securities Warrant Shares covered by their its request in an underwritten offering, they it shall so advise the Company as a part of their its request made pursuant to Section 2(a6(a)(i) or (ii), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company Majority Holders shall select the investment banking firm or firms that are reasonably approved by the Company to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fv) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration Holder, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (iA) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed Warrant Shares requested to be sold can be included in such offeringregistration by the Holder, then and (b) second, any other securities the Registrable Securities that are Company may permit to be included in such offering shall be registration, allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Warrant Agreement (Icagen, Inc.)
Demand Registration. (a) At Subject to the terms and conditions of this Agreement, including Section 2(c), if at any time beginning the Company receives a written request from any Investor that the Company register under the Securities Act Registrable Securities, then the Company shall file, as promptly as reasonably practicable but no later than the applicable Filing Deadline, a registration statement under the Securities Act covering all Registrable Securities that such Investor requests to be registered. The registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and, if the Company is a WKSI as of the Filing Deadline, shall be an Automatic Shelf Registration Statement. The Company shall use its commercially reasonable efforts to cause the registration statement to be declared effective or otherwise to become effective under the Securities Act as soon as reasonably practicable but, in any event, no later than the Effectiveness Deadline, and shall use its commercially reasonable efforts to keep the registration statement continuously effective under the Securities Act until the earlier of (1) the date on which such Investor notifies the Company in writing that the Registrable Securities included in such registration statement have been sold or the offering therefor has been terminated or (2) (x) fifteen (15) Business Days following the date on which such registration statement was declared effective by the SEC, if the Company is a WKSI and filed an Automatic Shelf Registration Statement in satisfaction of such demand, (y) thirty (30) Business Days following the date on which such registration statement was declared effective by the SEC, if the Company is not a WKSI and registered for resale the Registrable Securities on Form S-3 in satisfaction of such demand or (z) fifty (50) Business Days following the date on which such registration statement was declared effective by the SEC, if the Company is neither a WKSI nor then eligible to use Form S-3 and registered for resale the Registrable Securities on Form S-1 or other applicable form in satisfaction of such demand; provided that each period specified in clause (2) of this sentence shall be extended automatically by one hundred eighty (1801) Business Day for each Business Day that the use of such registration statement or prospectus is suspended by the Company pursuant to any Suspension Period, pursuant to (d) or pursuant to Section 5(i).
(b) If any Investor intends to distribute the Registrable Securities covered by such Investor's request by means of an underwriting, (i) such Investor shall so advise the Company as a part of its request made pursuant to Section 2(a) and (ii) such Investor shall have the right to appoint the book-running, managing and other underwriter(s) in consultation with the Company.
(c) IHC shall have the right to effect only one demand registration pursuant to a registration statement on Form S-3 only pursuant to this Section 2 at any time following January 23, 2021. The Company shall not be required to effect a demand registration at TCP-ASC's request pursuant to this Section 2 (A) unless the number of Registrable Securities requested to be registered hereunder represent at least 10% of the then-outstanding Common Stock and (B) (i) after the Company has effected six registrations at TCP-ASC's request pursuant to this Section 2 (of which no more than three may be on a form other than Form S-3), and each of such registrations has been declared or ordered effective and kept effective by the Company as required by Section 5(a); or (ii) more than twice at TCP-ASC's request during any single calendar year.
(d) Notwithstanding anything to the contrary in this Agreement, (1) upon notice to the demanding Investor, the Company may delay the Filing Deadline and/or the Effectiveness Deadline with respect to, or suspend the effectiveness or availability of, any registration statement for up to ninety (90) days in the aggregate in any twelve-month period (a "Suspension Period") if the Company would have to make an Adverse Disclosure in connection with the registration statement; provided that (i) any suspension of a registration statement pursuant to Section 6(b) shall be treated as a Suspension Period for purposes of calculating the maximum number of days of any Suspension Period under this (d) and (ii) no Suspension Period may overlap with any redemption pursuant to Section 6 of the Series A Certificate of Designations through the date that is thirty (30) Business Days following any such redemption; and (2) upon notice to the demanding Investor, the Company may delay the Filing Deadline and/or the Effectiveness Deadline with respect to any registration statement for a period not to exceed thirty (30) days prior to the Company's good faith estimate of the launch date of, and ninety (90) days after the Closing Dateclosing date of, holders a Company initiated registered offering of a majority equity securities (including equity securities convertible into or exchangeable for Common Stock and any offering of equity securities that triggers rights under Section 5.3 of the Investor Rights Agreement); provided that (i) the Company is actively employing in good faith all commercially reasonable efforts to launch such registered offering throughout such period, (ii) such demanding Investor is afforded the opportunity to include Registrable Securities then outstanding may request Shares in such registered offering in accordance with Section 3) and (iii) the right to delay or suspend the effectiveness or availability of such registration under the Securities Act of all or any portion of their Registrable Securities statement pursuant to this clause (2) shall not be exercised by the Company more than twice in any twelve-month period and not more than ninety (90) days in the aggregate in any twelve-month period. If the Company shall delay any Filing Deadline pursuant to this clause (d) for more than ten (10) Business Days, such demanding Investor may withdraw the demand therefor at any time after such ten (10) Business Days so long as such delay is then continuing by providing written notice to the Company to such effect, and any demand so withdrawn shall not count as a Registration Statement on Form S-1 or demand for registration for any successor form thereto purpose under this Section 2, including Section 2(c).
(eache) Notwithstanding the foregoing, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify if the managing underwriter(s) of an underwritten offering in connection with any registration pursuant to this Section 2 advises the Company and the demanding Investor in writing that in its good faith judgment the number of Registrable Securities requested to be included in such offering exceeds the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders number of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to which can be included sold in such registration. The Company shall prepare and file with (or confidentially submit to) offering at a price acceptable to such demanding Investor, then the Commission a Registration Statement on Form S-1 or any successor form thereto covering all number of the Registrable Securities that the holders thereof have so requested to be included in such Long-Form Registration within sixty (60) days after offering shall be reduced, pro rata, based on the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the aggregate number of Registrable Securities requested beneficially owned by each such demanding Investor, to be included that number of shares which in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in at such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderprice.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At any time beginning Any one hundred eighty (180) days after the Closing Date, holders or more Shareholders may make a written request for registration of a majority of the Registrable Securities then outstanding may request registration Stock under the Securities Act of all (a "Demand Registration") held by such Shareholders or Registrable Stock into or for which Shares held by such Shareholders are convertible or exchangeable (without regard to any portion of their restrictions on conversion or exchange by any particular holder); PROVIDED that,(i) the Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested Stock sought to be included registered would constitute at least 10% of the outstanding Common Stock of the Company or (ii) if the Shareholder or Shareholders making such request includes any Senior Manager, the Registrable Stock sought to be registered by all Senior Managers, in the Long-Form Registration. Upon receipt of any such requestaggregate, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all would constitute at least 1.0% of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority outstanding Common Stock of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form theretoCompany. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three six months of the date any registration statement with respect to Voting Common Stock (3) months after the effective date of other than a previous registration statement on Form S-4 or S-8 or any successor form thereto), including, without limitation, any registration statement filed in connection with a Demand Registration, Shelf Takedown or a previous Piggyback becomes effective. Notwithstanding the foregoing, the Company shall not be obligated to effect any Demand Registration in which holders of Registrable Securities were permitted pursuant to register the offer and sale under the Securities Act, and actually sold, at least a majority clause (ii) above within twelve months of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for date any other registration statement filed in connection with a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; clause (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such above becomes effective. Each request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion will specify the number of shares of Common Registrable Stock proposed to be included sold and will also specify the intended method of disposition thereof. Within 10 days after receipt of such request, the Company will give written notice of such registration request to all other Shareholders holding Registrable Stock or Shares convertible into or exchangeable for Registrable Stock (without regard to any restrictions on conversion or exchange by any particular holder) and include in the Demand Registration or Shelf Takedown, including such registration all Registrable Securities and all other shares Stock with respect to which the Company has received written requests for inclusion therein within 20 Business Days after the receipt by the applicable holder of Common Stock proposed to be included in such underwritten offering, exceeds the Company's notice. Each request will also specify the number of shares of Registrable Stock to be registered and the intended method of disposition thereof. The Company shall also be permitted, at any time prior to the expiration of such 20 day period, to include Voting Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included or Convertible Securities in such Demand Registration or Shelf Takedown would adversely affect to the price per share extent consistent with Section 5.3.
(b) The Company may require, and the Shareholders desiring to sell a majority of shares of the Common Registrable Stock proposed to be sold registered in a Demand Registration may elect, that the offering pursuant to such Demand Registration be in the form of a firm commitment underwritten offering. In that event, all Shares to be registered shall be registered for sale only in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the Shareholders desiring to sell a majority of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for registered in the account of Demand Registration shall select the Company and/or other holders of Common Stock) allocated among such Persons book-running managing Underwriter in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed connection with any underwritten offering and any additional investment bankers and managers to be sold can used in connection with the offering; PROVIDED that such managing Underwriter and additional investment bankers and managers must be included in such offering, then reasonably satisfactory to the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderCompany.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Shareholders Agreement (Amerin Corp)
Demand Registration. (a) At If at any time beginning one hundred eighty (180) days after prior to the Closing Date, holders of a majority expiration of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare Period and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which Parent pays any portion of the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company Contingent Payments in shares of Parent Common Stock, any Registrable Securities shall not be required have been registered by Parent, then the Representative shall on behalf of the Company Stockholders have the right by delivery of written notice to Parent, to request that Parent effect a Long-registration on Form Registration more than two (2) times for S-3 covering the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority resale of the Registrable Securities requested to be included in such registration.
(b) After the Registration Dateextent issued; provided, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretohowever, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company Parent shall not be obligated to effect any Demand Registration within three such registration (3i) months after during the effective period starting with the date thirty (30) days prior to Parent’s good faith estimate of the date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actfiling of, and actually sold, at least ending on a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to date ninety (90) days after the filing or effectiveness of effective date of, a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines Parent-initiated registration; provided that Parent is actively employing in its reasonable good faith judgment that all reasonable efforts to cause such Demand Registration registration statement to become effective, or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of (A) if Parent is engaged in any material information that activity which, in the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority good faith determination of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall Board of Directors of Parent, based on the advice of counsel, would be entitled required to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses be disclosed in connection with such registration. The Company may delay , and such disclosure would adversely affect such material activity to the material detriment of Parent, and (B) Parent shall furnish to Representative a Demand Registration or Shelf Takedown hereunder only certificate signed by the President of Parent stating that in the good faith judgment of the Board of Directors of Parent, it would be seriously detrimental to Parent for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then Parent shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of Representative, and, provided further, that Parent shall not defer its obligation in this manner more than once in any period twelve-month period. The date on which Parent receives such notice is referred to herein as the “Demand Date.” In the event that Form S-3 is unavailable and/or inappropriate for such a registration of 12 consecutive months.
(e) If the holders of all the Registrable Securities initially requesting Securities, Parent shall use such other form or forms as are available and appropriate for such a Demand Registration or Shelf Takedown elect registration, subject to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company Representative, which shall not be permitted to file any Registration Statement on Form S-8unreasonably withheld.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After Following the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use Holders of a Registration Statement on Form S-3 or any successor form thereto, the holders Majority of Registrable Securities shall have the right to request an unlimited number request, by delivery of registrations a written notice to the Company (a “Demand Notice”), that the Company file a registration statement under the Securities Act of (a “Demand Registration Statement”) covering all or any a portion of their the Registrable Securities pursuant to a Registration Statement on Form S-3 for the purpose of effecting an offering of such Registrable Securities, whether underwritten or any similar short-form Registration Statement otherwise (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”); provided, however, that no Initiating Holder shall be entitled to demand a Demand Registration Statement during the period when the Company is exercising its right to defer a Demand Registration pursuant to Section 2(b). Each Any such Demand Notice must request for a Short-Form Registration shall specify the number registration of Registrable Securities requested having an aggregate market value, based on the average per share closing price of the Common Stock as reported on the principal exchange or market on which it is then traded over the ten (10) consecutive trading days prior to the date of the Demand Notice, of not less than twenty-five million dollars ($25,000,000), or, if the registration statement will be included in the Short-on Form RegistrationS-3, not less than ten million dollars ($10,000,000). Upon receipt of any such requestSubject to Section 6(b)(i), the Company shall promptly (as soon as reasonably practicable, but in no event later than five sixty (560) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days if the registration statement will be a shelf registration statement on Form S-3) after receiving a Demand Notice, the date on which Company shall file with the initial request is given Commission a registration statement covering the Registrable Securities subject to the Demand Notice. Subject to Sections 2(b) and 4, the Company shall use its reasonable best efforts to cause such Registration Statement registration statement to become effective as expeditiously as possible. Any registration under this Section 2 shall reflect such plan or method of distribution of the applicable securities as shall be declared effective designated by the Commission as soon as practicable thereafterInitiating Holder.
(b) Notwithstanding the provisions of Section 2(a), if the Company shall furnish to the Initiating Holder a certificate signed by the President and Chief Executive Officer of the Company stating that such officer has made a good faith determination that a registration would (i) require the disclosure of material nonpublic information concerning the Company, its business or prospects and that such premature disclosure would be materially adverse to the Company, and/or (ii) materially interfere with a pending transaction involving the Company or a subsidiary or affiliate of the Company, then the Company shall have the right to defer such filing or the effectiveness hereunder for a period ending not more than ninety (90) days after the Company’s receipt of the applicable Demand Notice, provided, that the Company may not exercise its right under this Section 2(b) more than twice in any 24-month period; and provided further, that the Company may not exercise its rights under this Section 2(b) for two consecutive 90-day periods.
(c) At such time as Notwithstanding the Company shall have qualified for the use provisions of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”Section 2(a), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly not be obligated to (but in no event later than five (5i) days following receipt thereof) deliver notice of such request to all other holders file or effect a Demand Registration Statement for an underwritten offering of Registrable Securities who shall then have five (5an “Underwritten Demand Registration Statement”) days from the date such notice is given to notify the Company in writing within a period of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) 90 days after the effective date on which the initial request is given and shall use its best efforts to cause such Shelf of any other Underwritten Demand Registration Statement or an underwritten offering pursuant to be declared effective a Shelf Demand Registration Statement (as defined below) or (ii) file or effect more than a total of two Underwritten Demand Registration Statements within any 12-month period; provided, however, that each Shelf Demand Registration Statement filed during the applicable 12-month period will reduce by one the Commission as soon as practicable thereafternumber of Underwritten Demand Registration Statements the Company is obligated to file during such 12-month period.
(d) The Company shall not be obligated may elect to effect register in any underwritten Demand Registration within three (3) months after the effective date of a previous an “Underwritten Demand Registration”) any additional shares of Common Stock (including, Shelf Takedown without limitation, any shares of Common Stock to be distributed in a primary offering made by the Company) so long as the inclusion of such Common Stock by the Company would not (as determined in the Initiating Holder’s reasonable discretion), (i) be reasonably likely to delay in any material respect the Initiating Holder’s ability timely to sell the Registrable Securities pursuant to the Underwritten Demand Registration Statement or (ii) cause a previous Piggyback Registration reduction in which holders the number of Registrable Securities were permitted to register included in the offer and sale under the Securities Act, and actually sold, at least Underwritten Demand Registration as a majority result of the Company’s election to so register additional shares of Registrable Securities requested Common Stock. Such election of the Company, if made, shall be made by the Company giving written notice to be included therein. The Company may postpone for up the Initiating Holder prior to ninety (90) days the filing or effectiveness of a the Underwritten Demand Registration Statement for a Demand Registration or a supplement stating (a “Shelf Supplement”A) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable proposes to comply with requirements under the Securities Act or Exchange Act; provided, that include additional shares of Common Stock in such event the holders of a majority of the Registrable Securities initiating such Underwritten Demand Registration or Shelf Takedown shall be entitled to withdraw such request andStatement, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(eB) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holderincluded.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing 60 month anniversary of the Effective Date, holders Other Investors that, together with the Affiliates of a majority such Other Investors, Beneficially Own in the aggregate at least 10% of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Other Investors holding Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the Other Investors that are holders thereof have requested to be included in such Long-Form Registration within sixty (60) 90 days after the date on which the initial request is given and shall use its commercially reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities Other Investors as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders Other Investors requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration first Public Offering after the Effective Date, the Company shall use its commercially reasonable best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, but in any event no earlier than the holders day immediately following the 60 month anniversary of the Effective Date, the Other Investors holding Registrable Securities shall have the right to request an unlimited number of 24484926.1 04/16/2018 registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Other Investors holding Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the Other Investors that are holders thereof have requested to be included in such Short-Form Registration within thirty (30) 45 days after the date on which the initial request is given and shall use its commercially reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), but in any event no earlier than the day immediately following the 60 month anniversary of the Effective Date, Other Investors that are holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Other Investors holding Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the Other Investors that are holders thereof have requested to be included in such Shelf Registration within ten (10) 20 days after the date on which the initial request is given and shall use its commercially reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) six months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety 90 days from the date of the Board determination (90described below) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf 24484926.1 04/16/2018 Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the CompanyCompany (a “Pending Transaction”); (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the Other Investors that are holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities Other Investors initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a3(a), Section 2(b3(b), or Section 2(c3(c) and the Company shall include such information in its notice to the other holders of Registrable SecuritiesOther Investors. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the Other Investors that are holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the Other Investors that are holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the Other Investors that are holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the Other Investors that are holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities 24484926.1 04/16/2018 proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not not, other than in connection with a Pending Transaction, file any other Registration Statement without the consent of the Other Investors that are holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datean IPO, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At Following the twelve (12) month anniversary of the consummation of an IPO, at such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities Investor shall have the right to request an unlimited number of registrations a one-time registration under the Securities Act of all or any portion of their its Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each The Investor’s request for a Short-Form Demand Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration within thirty (30) days filed as soon as practicable after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(db) The Company shall not be obligated to effect any Demand Registration within three one hundred eighty (3180) months days after the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority portion of the shares of Registrable Securities requested to be included therein. , pursuant to this or any other registration rights agreements pertaining to the Company.
(c) The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown Investor shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted one-time Demand Registrations Registration hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(ed) If the holders of the Registrable Securities Investor initially requesting a Demand Registration or Shelf Takedown elect elects to distribute the Registrable Securities covered by their its request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the an investment banking firm or firms reasonably acceptable to the Investor to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (1347 Property Insurance Holdings, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Datedate of this Agreement, holders of a majority of the Registrable Securities then outstanding Investor may request registration under the Securities Act of all or any portion of their its Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to, as applicable) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have Investor has requested to be included in such Long-Form Registration within sixty as expeditiously as possible (60) and not later than 30 days after the date on which the initial request is given given) and shall use its best reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) four times for the holders of Registrable Securities as a groupInvestor; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are Investor is able to register and sell at least a majority 50% of the Registrable Securities requested to be included in such registration.
(b) After the Registration Effective Date, the Company shall use its reasonable best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities Investor shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their its Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to, as applicable) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty as expeditiously as possible (30) and not later than 15 days after the date on which the initial request is given given) and shall use its best reasonable efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities Investor shall have the right to request pursuant to a written notice delivered to the Company (a “Shelf Registration Notice”) registration under the Securities Act of all or any portion of their its Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to, as applicable) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten as expeditiously as possible (10) and not later than 15 days after the date on which the initial request is given given) and shall use its best reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) months 90 days after the effective date of a previous Demand Long-Form Registration, or Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were Investor was permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority 50% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 90 days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a prospectus supplement (a “Shelf Supplement”) for a Shelf Takedown/a supplement for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that effecting such Demand Registration or Shelf Takedown at such time would (i) materially interfere with a significant acquisition, corporate organizationreorganization, financing, securities offering or other similar extraordinary transaction involving the Company; or (ii) require premature disclosure of material information that which would be materially adverse to the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Actand would not otherwise be required by law; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown Investor shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect Investor elects to distribute the Registrable Securities covered by their its request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securitiesor Section 2(d). The Company Investor shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must selection shall be reasonably acceptable subject to the holders of a majority prior written approval of the Registrable Securities initially requesting the offeringCompany, not to be unreasonably withheld, conditioned or delayed.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf TakedownInvestor. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities Investor in writing (a copy of which shall be provided to Investor) that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Securities Purchase Agreement (General Finance CORP)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Dateeffective date of this Agreement, holders of a majority of the Registrable Securities (whether or not then outstanding outstanding) may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, If the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have is qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty sixty (3060) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as If the Company shall have is qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten sixty (1060) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) At any time that a Shelf Registration Statement is effective, if a holder of Registrable Securities covered by such Shelf Registration Statement delivers a notice to the Company (a “Shelf Takedown Notice”) stating that the holder intends to effect an offering of all or part of its Registrable Securities included in such Shelf Registration Statement (a “Shelf Takedown”) and the Company is eligible to use such Shelf Registration Statement for such Shelf Takedown, then the Company shall take all actions reasonably required, including amending or supplementing (a “Shelf Supplement”) such Shelf Registration Statement, to enable such Registrable Securities to be offered and sold as contemplated by such Shelf Takedown Notice. Each Shelf Takedown Notice shall specify the number of Registrable Securities to be offered and sold under the Shelf Takedown.
(e) The Company shall not be obligated to effect any Demand Long-Form Registration within three one hundred twenty (3120) months days after the effective date of a previous Demand Registration, Long-Form Registration or Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included thereinTakedown. The Company may postpone for up to ninety forty-five (9045) days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a supplement (Shelf Supplement for a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) Takedown if the Board of Directors determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that provided that, in no event shall any such event the holders period exceed an aggregate of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once ninety (90) days in any period of 12 twelve (12) consecutive months.
(ef) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a)request, Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration or Shelf Takedown shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fg) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown, which consent shall not be unreasonably withheld or delayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock Registrable Securities proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock securities proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock Registrable Securities which can be sold in such underwritten offering and/or the number of shares of Common Stock Registrable Securities proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock Registrable Securities that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock securities proposed to be included therein by any other Persons (including shares of Common Stock securities to be sold for the account of the Company and/or other holders of Common Stockholders) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(gh) Upon The Company shall not effect any sale registered under the Securities Act or distribution of its equity securities, or any securities convertible into, exercisable for or exchangeable for shares of such securities, during the sixty (60) days prior to and during the 90-day period beginning on the effective date of any underwritten Demand Registration (other than a registration (i) pursuant to a Registration Statement on Form S-8 (or other registration solely relating to an offering or sale to employees or directors of the Company pursuant to any employee stock plan or other employee benefit arrangement), (ii) pursuant to a Registration Statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), or (iii) in connection with any dividend or distribution reinvestment or similar plan), unless the managing underwriter of any such underwritten registration otherwise agrees.
(i) The holders of Registrable Securities agree that the Company may impose a Suspension Period due to, and each holder agrees that, upon receipt of a notice from the Company of the occurrence of any Demand Registrationevent of the kind described in Section Section 3.2(g), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such holder’s receipt of the copies of the supplemental prospectus or amended Registration Statement as contemplated by Section 3.2(g) or until it is advised in writing by the Company that the use of the applicable prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus or Registration Statement (a “Suspension Period”); provided, that the Company shall not file use its reasonable best efforts to eliminate or cure the cause of the Suspension Period. The Company may provide appropriate stop orders to enforce the provisions of this Section 3.1(i).
(j) At any other time prior to the effective date of a Registration Statement without the consent of Statement, the holders of a majority of the Registrable Securities requesting participating in the registration until may withdraw such request by written notice of such withdrawal to the consummation Company.
(k) Subject to the other limitations contained in this Agreement, the Company is not obligated hereunder to effect (A) more than two Demand Registrations in any 12 month period, (B) more than a total of three Demand Registrations pursuant to this Agreement or (C) a subsequent Demand Registration if a Registration Statement covering all of the sale Registrable Securities held by the holders requesting the registration shall have become effective under the Securities Act and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities contemplated on substantially the terms and conditions specified in the request for Demand Registration. In addition, the Company will not be required to file a Registration Statement at a time when filing a Registration Statement would be prohibited by the applicable Demand Registration; provided that the Company shall be permitted terms of a customary “lock-up” or “market stand-off” provision included in an underwriting agreement relating to file any Registration Statement on Form S-8an underwritten offering. .
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty (180) days after six months after the Closing Datedate of this Agreement, holders of a majority of the Registrable Securities then outstanding (the “Required Holders”) may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, each a “Long-Form Demand Registration”). Each request for a Long-Form Demand Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty 45 (60forty five) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Demand Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Demand Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.[RESERVED]
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months 90 days after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 180 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities Required Holders initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 twelve consecutive months.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company Required Holders initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities Required Holders initially requesting such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Timios National Corp)
Demand Registration. (a) At Subsequent to the earlier of the first anniversary of the date of this Agreement or the 180th day following a Qualified IPO, GSC may at any time beginning one hundred eighty and from time to time make a written request to the Company for registration (180) days after a “Demand Registration”), under and in accordance with the Closing Date1933 Act, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion part of their its Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (eachSecurities, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon upon receipt of any such request, which the Company shall promptly cause (but and in no any event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after receipt of such request) to be prepared and filed a registration statement under the date on 1933 Act covering the Registrable Securities requested to be registered pursuant to this Section. Within twenty (20) days after receipt of such request, the Company will provide written notice of such registration request to all Investors who are holders of Registrable Securities and the Company will include in such registration all Registrable Securities of such Investors with respect to which the initial request is given and shall use its best efforts Company has received written requests for inclusion therein within twenty (20) days after the providing of such written notice. All requests made pursuant to cause such Registration Statement this subsection will specify the number of Registrable Securities to be registered and the intended methods of disposition thereof; provided, however, that the Company may, if the Board of Directors so determines in the exercise of its reasonable judgment, that due to a pending or contemplated material acquisition, disposition, financing or other transaction it would be inadvisable to effect such Demand Registration at such time, defer such Demand Registration for a single period not to exceed 90 days; provided that the Company may not exercise this right more than once in any twelve-month period.
(b) GSC shall be entitled to three Demand Registrations with respect to the Common Stock held by them, and the expenses of such registrations shall be borne by the Company. A Demand Registration shall not be counted as a Demand Registration hereunder until the registration statement to such Demand Registration has been declared effective by the Commission as soon as practicable thereafterand maintained for a period of at least six months, or such shorter period if all Registrable Securities included therein have been sold. The Company shall not be required obligated to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a one Demand Registration Statement shall not count as a Longin any 12-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereaftermonth period.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or If requested by GSC, any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Demand Registration shall specify be underwritten and GSC shall select the number of Registrable Securities requested underwriter or underwriters to be included in the Shelf manage such Demand Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without registration statement referred to in this Section 6.2, for sale in accordance with the prior written consent method of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedowndisposition specified by GSC, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of by the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agreefor its own account. If the managing underwriter determines or underwriters of a Demand Registration advise the Company in writing that less than all in its or their opinion the number of the Registrable Securities proposed to be sold in such Demand Registration exceeds the number which can be included sold, or adversely affects the price at which the securities are to be sold, in such offering, then the Registrable Securities that are included Company will include in such offering shall be allocated pro rata among the respective holders thereof on the basis of registration only the number of Registrable Securities owned which, in the opinion of such underwriter or underwriters, can be sold in such offering and which will not adversely affect the price thereof. In the event that the contemplated distribution does not involve an underwritten offering, the determination that the inclusion of such Registrable Securities shall adversely affect the price or the number of securities which may be sold by each the Company in such holderoffering may be made by GSC in its reasonable judgment. The Registrable Securities so included in such Demand Registration shall be apportioned (i) first, to any shares of Registrable Securities that GSC and its Affiliates propose to sell, (ii) second, pro rata among any shares of Registrable Securities that any other Investors propose to sell, according to the total amount of Registrable Securities requested for inclusion by said other Investors, or in such other proportions as shall mutually be agreed to among such other Investors, and (iii) third, to any shares of Common Stock that the Company proposes to sell. Except for registration statements on Form S-4 or on Form S-8 or such other forms as shall be prescribed under the 1933 Act for the same purposes or for any exchange offer, the Company will not file with the SEC any other registration statement under the 1933 Act with respect to its securities, whether for its own account or that of other Investors, from the date of receipt of a notice from GSC pursuant to Section 6.2(a) until the completion of the period of distribution of the registration statement contemplated thereby (unless the request for Demand Registration under Section 6.2(a) has been withdrawn by GSC, in which case the Company may file such other registration statements after any such withdrawal).
(ge) Upon receipt The provisions of any Demand Registration, this Section 6.2 shall apply so long as GSC and its Affiliates are the Company shall not file any other Registration Statement without the consent record holders of at least 20% of the holders Common Stock issued under the Plan (subject to adjustment from time to time for stock splits, stock dividends, stock combinations, reclassifications and similar transactions and adjustments in the event of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8further stock issuances).
Appears in 1 contract
Sources: Stockholders Agreement (Atlantic Paratrans of Arizona, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority first anniversary of the Registrable Securities then outstanding IPO, the Investor may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement held by it or its Affiliates on Form S-1 or any successor form thereto (each, each a “"Long-Form Registration”"). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) business days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) business days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty (60) 90 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datefirst anniversary of the IPO, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities Investor shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “"Short-Form Registration” " and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “"Demand Registration”"). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) business days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) business days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) 45 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) six months after (i) the effective date of a previous Demand Registration, Shelf Takedown Registration Statement or (ii) a previous Piggyback Registration in registration under which the holders of the Registrable Securities had piggy-back rights pursuant to Section 3 hereof wherein the holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority 50% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 45 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company's Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 twelve consecutive months.
(ed) If the holders of the Registrable Securities initially Investor requesting a Demand Registration or Shelf Takedown elect elects to distribute the Registrable Securities covered by their its request in an underwritten offering, they it shall so advise the Company as a part of their its request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company Investor shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which that are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration Investor, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated for the purposes of this clause (ii) among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Ares Commercial Real Estate Corp)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to The Company shall file a Registration Statement on Form S-1 or with the SEC covering the resale of all of the Registrable Securities as described herein within thirty (30) days of the date hereof to permit the public resale of Registrable Securities then outstanding from time to time as permitted by Rule 415 of the Securities Act. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. In the event that the Company is unable to register for resale under Rule 415 all of the Registrable Securities on the Registration Statement that it has agreed to file pursuant to Section 2(a) due to limits imposed by the SEC’s interpretation of Rule 415, then the Company shall be obligated to include in such Registration Statement (as withdrawn and refiled if necessary to comply with Rule 415) only such limited portion of the Registrable Securities as the SEC shall permit; any successor form thereto (eachexclusion shall be made first to shares other than the Registrable Securities and Other Registrable Securities, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify and then, to the extent necessary, pro rata among the holders in proportion to the number of Registrable Securities requested to be included in and Other Registrable Securities held by such holders. Any request for acceleration of the Long-Form RegistrationRegistration Statement shall seek effectiveness at 5:00 p.m., Central Time, or as soon thereafter as practicable. Upon receipt of any such request, the The Company shall notify the Holders by facsimile or e-mail as soon as promptly practicable, and in any event, prior to 9:00 a.m., Central Time, on the day after any Registration Statement is declared effective. The Company shall file with the SEC under Rule 424 a final prospectus as promptly as practicable, and in any event, prior to 9:00 a.m., Central Time, on the day after any Registration Statement is declared effective.
(b) The Company shall prepare, and, as soon as practicable but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and Additional Filing Deadline, file with (or confidentially submit to) the Commission a SEC an Additional Registration Statement on Form S-1 (or any successor form thereto Form S-3, if applicable) covering the resale of all of the Registrable Securities that not previously registered in a Registration Statement or a preceding Additional Registration Statement as the holders thereof have requested case may be. To the extent the SEC does not permit the aforesaid Registrable Securities to be included in registered on an Additional Registration Statement, the Company shall file Additional Registration Statements successively trying to register on each such Long-Form Additional Registration within sixty (60) days after Statement the date on which maximum number of remaining Registrable Securities until the initial request is given and resale of the remaining Registrable Securities have been registered with the SEC. The Company shall use its best commercially reasonable efforts to cause such have each Additional Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; providedpracticable, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days the Additional Effectiveness Deadline. By 9:00 a.m. Central Time on the business day following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such requestAdditional Effective Date, the Company shall promptly (but file with the SEC in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from accordance with Rule 424 the date such notice is given to notify the Company in writing of their desire final prospectus to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses used in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made sales pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringAdditional Registration Statement.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Texas Rare Earth Resources Corp.)
Demand Registration. (a) At any time beginning one hundred eighty during the twelve (18012) days month period after the Closing Datedate of this Agreement, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration” and, together with a Shelf Registration (as defined below), a “Demand Registration”). Each The request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty twenty-one (6021) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall may use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of if the Registrable Securities that the holders thereof have requested Company would qualify to be included in use such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafterform.
(cb) At such time prior to the twelve (12) month anniversary of the date of this Agreement as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of a majority of the Registrable Securities shall have the right to request registration under the Securities Act DM_US 77406198-2.088627. 0010 of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each A request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five seven (57) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten twenty-one (1021) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) Notwithstanding anything to the contrary set forth herein, the Company shall only be obligated to effect one Long-Form Registration and one Shelf Registration, and the Company’s obligation to effect any Demand Registration hereunder shall terminate twelve (12) months after the date of this Agreement.
(d) The Company shall not be obligated to effect any Demand Registration within three one hundred eighty (3180) months days after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority seventy-five percent (75%) of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or the filing of a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment judgment, with the advice of outside legal counsel, that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the a permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once twice in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration or Shelf Takedown shall select the investment banking firm or firms of recognized national standing to act as the managing underwriter or underwriters in connection with such offering; provided, that such selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in DM_US 77406198-2.088627. 0010 such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or without adversely affecting the marketing of the offering or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons the Company, and (including iii) third, the shares of Common Stock proposed to be sold for the account of the Company and/or included therein by any other holders of Common Stock) Persons, allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Kingsway Financial Services Inc)
Demand Registration. Following receipt of a Demand Notice, the Company shall:
(ai) At give written notice of such request for registration to all Holders of Registrable Securities within ten (10) days after receipt of a Demand Notice;
(ii) cause to be filed, as soon as practicable, but in any time beginning event within, for the filing of a Shelf Registration Statement, thirty (30) days of the date of delivery of the Demand Notice, a Registration Statement covering such Registrable Securities that the Company has been so requested to register by the Requesting Holders and other Holders of Registrable Securities who make a request to the Company, within fifteen (15) days of the mailing of the Company’s notice referred to in Section 1.2(b)(i) hereof, that their Registrable Securities also be registered, providing for the registration under the Securities Act of such Registrable Securities to the extent necessary to permit the disposition of such Registrable Securities in accordance with the intended method of distribution specified in such Demand Notice;
(iii) use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as soon as practicable thereafter, but in no event later than thirty (30) days or, if a Registration Statement is reviewed by the staff of the SEC, the Company shall use its commercially reasonable efforts to have such Registration Statement declared effected not later than sixty (60) days following the date of initial filing thereof with the SEC; and
(iv) if the Company shall have previously effected a Demand Registration pursuant to this Section 1.2, the Company shall not be required to effect any registration pursuant to Section 1.2 until a period of one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days elapsed from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a such previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive monthsstatement.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At If at any time beginning one hundred eighty (180) days commencing six months after the Closing DateDate and ending 60 days prior to the expiration of the Registration Period, holders the Company receives a written demand from Holders of a majority of the Registrable Securities then outstanding may request registration under that the Securities Act of all or any portion of their Registrable Securities pursuant to Company file a Registration Statement on Form S-1 or any successor form thereto (each, a the “Long-Form RegistrationDemand Notice”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, then the Company shall promptly (prepare, and, as soon as practicable but in no event later than five (5) days following receipt thereof) deliver notice the applicable Filing Deadline, file with the Commission a Registration Statement covering the resale of such request to all other holders of the Registrable Securities who shall then have five (5) days from requested by the date such notice is given to notify the Company in writing of their desire Holders to be included in such registrationregistration statement, which shall not be less than 25% of the Registrable Securities. Within 10 days of receipt of the Demand Notice, the Company will send written notice (the “Company Notice”) of the Demand Notice and its intention to comply therewith to each other Holder and include in such registration all Registrable Securities of the Holders with respect to which the Company has received written request for inclusion within 10 days after the date of delivery of the Company Notice. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such have the Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; providedpracticable, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days the applicable Effectiveness Deadline. By 9:30 a.m. New York Time on the Business Day following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify Effective Date, the Company shall file with the Commission in writing of their desire accordance with Rule 424 under the Securities Act the final prospectus to be included used in connection with sales pursuant to such registration. The Company shall prepare and file with Registration Statement.
(or confidentially submit tob) If for any reason the Commission a Registration Statement on Form S-3 or any successor form thereto covering does not permit all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement filed pursuant to be declared effective by Section 5.1(a), or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Commission Company shall prepare, and, as soon as practicable thereafter.
(c) At such time as but in no event later than the Company shall have qualified for applicable Filing Deadline, file with the use of a Commission an additional Registration Statement on Form S-3 or covering the then appropriate form resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration415. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its reasonable best efforts to cause each such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or as soon as possible but, in any successor rule thereto (a “Shelf Takedown”) if event, no later than the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisitionapplicable Effectiveness Deadline. By 9:30 a.m. New York Time on the Business Day following the Effective Date, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render shall file with the Company unable to comply Commission in accordance with requirements Rule 424 under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall final prospectus to be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses used in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made sales pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringRegistration Statement.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty Prior to the earlier of (180a) days after the Closing date on which all Registrable Securities may be sold without registration and without restriction or in accordance with Rule 144 in a single transaction and (b) the three-year anniversary of the Effective Date, holders of a majority at least 75% of the Registrable Securities then outstanding may request request, in writing, registration under the Securities Act of all or any portion of their the Registrable Securities that equals or exceeds 75% of the then outstanding Registrable Securities pursuant to a Registration Statement Statement. The Company, in its sole discretion, may prepare a registration statement on a Form S-1 or any equivalent or successor form thereto (each, a “Long-Form Registration”), or on Form S-3 or any equivalent or successor form thereto (a “Short-Form Registration” and, collectively with any Long-Form Registration, a “Demand Registration”). Each Such request for a Long-Form Demand Registration shall must specify the number of Registrable Securities requested to be included in the Long-Form Demand Registration. Upon receipt of any such request, the Company shall will promptly (but in no event later than five (5) 20 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall will then have five (5) 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall will prepare and file with (or confidentially submit to) the Commission SEC a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in pursuant to such Shelf Demand Registration within ten (10) 60 days after the date on which the initial request is given and shall will use its best commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter, subject to compliance with review by the SEC. The Company is not required seek effectiveness of a Demand Registration more than once for the holders of Registrable Securities as a group; provided, that a Registration Statement will not count as a Demand Registration requested under this Section 6.2(a) unless and until it has become effective.
(db) The Company will select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with the Demand Registration; provided, that such selection will be subject to the consent of the Investors holding at least a majority of the Registrable Securities initiating the Demand Registration, which consent shall not be unreasonably withheld or delayed. The Company will bear all fees and expenses attendant to the registration of the Registrable Securities requested to be included in the Demand Registration pursuant to this Section 6.1, but the Investors will pay any and all underwriting commissions and the expenses of any legal counsel selected by the Investors to represent them in connection with the sale of the Registrable Securities.
(c) The Company is not obligated to effect seek effectiveness of any Demand Long-Form Registration within three (3) months 90 days after the effective date of a previous Demand Registration, Shelf Takedown Registration Statement or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) ). The Company may postpone for up to 90 days the filing or effectiveness of a Registration Statement or Shelf Takedown for a Demand Registration if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority at all of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall will be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall will not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive monthshereunder.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities Company, in writing writing, that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall will include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall will be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned requested to be included in the Demand Registration by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Securities Purchase Agreement (Sun BioPharma, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days or from time to time during the four year period commencing 29 months after the Closing Datedate of this Agreement, holders one or more Holders may on two separate occasions require the Company, by delivery to the Company of a majority of notice in writing (a Demand ), to cause no fewer than 2,000,000 Registrable Shares held by such Holder or Holders to be registered for sale to the Registrable Securities then outstanding may request registration public under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form RegistrationAct. Upon receipt of any such requesta notice, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall will use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect file a Long-Form Registration more than two registration statement (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At form) with the Commission promptly (but not more than 30 days) after such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretorequest and to effect such registration (including, without limitation, the holders execution of Registrable Securities shall have the right an undertaking to request an unlimited number of registrations file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations under the Securities Act Act) as would permit or facilitate the sale and distribution of all or any portion of their such Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (Shares as defined below), a “Demand Registration”). Each are specified in such request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon manner of distribution specified therein, together with all Registrable Shares of any Holder or Holders joining in such request as are specified in written requests received by the Company within 15 days after receipt of any such requestDemand; provided, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities however, that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to take any action to effect any Demand Registration within three such registration, qualification or compliance pursuant to this Section 6.1:
(3a) months after in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance except as may be required by the Securities Act;
(b) during the period starting with the date 60 days prior to the filing of, and ending on a date 120 days following the effective date of of, a previous Demand Registrationregistration statement filed by the Company (other than with respect to a registration statement relating to a Rule 145 or other business combination transaction, Shelf Takedown an offering solely to employees and/or directors or a previous Piggyback Registration in any other registration which holders is not appropriate for the registration of Registrable Securities were permitted Shares); or
(c) at any time when the Holders would be required to register refrain from selling Registrable Shares pursuant to Section 6.7(b) hereof. In the offer and sale under event that any Holder seeks to require the Securities Act, and actually sold, Company to effect the registration of Shares at least a majority time when the Company is not obligated to effect such registration pursuant to clause (b) or (c) of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that immediately preceding sentence, such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown Holder shall be entitled to withdraw require the Company to effect the registration of Shares as soon as the conditions specified in such request and, if such request for clauses (b) and (c) cease to apply. If at the time of receipt of a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to this Section 2(a), Section 2(b), or Section 2(c) and the Company 6.1 there shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten public offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed contemplated by the Company to be included occur within the following 90 days or in the Demand Registration or Shelf Takedownprogress, including all Registrable Securities and all other shares then, upon receipt of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offeringDemand, the Company shall include notify the Holders of such public offering, advising them that they may elect to withdraw such Demand and participate in such public offering pursuant to Section 6.2. Such withdrawn Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without count toward the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated two registrations provided by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8this Section 6.1.
Appears in 1 contract
Sources: Transfer, Registration Rights and Governance Agreement (Bass Lee M)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after following the Closing DateDate but prior to the expiration of the Effectiveness Period, holders of if the Company shall be requested (a “Registration Request”) by Holders holding at least a majority of the then outstanding Registrable Securities then outstanding may request to effect the registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (eachSecurities, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, then the Company shall promptly (but in no event later than i) within five (5) days following of the receipt thereof) deliver of such Registration Request, give written notice of such request to all Holders describing the terms of such registration and, in the case of an Underwriting Request under Section 4 of this Agreement, describing the underwriting in which such securities are proposed to be sold and (ii) as soon as practicable (and in the case of an offering to be made on a continuous basis under Rule 415 or any other holders Registration Request not involving an Underwriting Request, in no event later than thirty (30) days following the Registration Request) cause to be prepared and filed with the SEC a Registration Statement providing for the resale of all Registrable Securities who which Holders request to be registered. The Registration Statement shall then have five (5) days from the date such notice is given to notify be on Form S-3 if the Company is then eligible to register for resale the Registrable Securities on such form (a “Short Form Registration”). If the Company is not then eligible to register for resale the Registrable Securities on Form S-3, such registration shall be on Form S-1 or another appropriate form in writing of their desire to be included in such registrationaccordance herewith (a “Long Form Registration”). The Company shall prepare and file with (or confidentially submit to) cause the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof (and in the case of an offering to be made on a continuous basis under Rule 415 or any other Registration Request not involving an Underwriting Request, in no event later than either of (A) one hundred and eighty (180) calendar days following the date of the Registration Request or (B) five (5) Business Days following notification by the Commission staff of the SEC to the Company that there will be no review of the Registration Statement or, if comments have been given, that the staff will have no further comments with respect thereto). The Company shall keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by such Registration Statement have been sold. Reference is made to the Registration Default Payments (as soon as practicable thereaftersuch term is defined in the Notes) set forth in Section 10(e) of the Notes and Section 5.7 of the Note and Warrant Purchase Agreement. The Company shall not be required obligated to effect file and cause to become effective more than three (3) Registration Statements under a Long-Long Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a pursuant to this Section 2(a). A Registration Statement shall not count be counted for purposes of the foregoing until such time as a Long-such Registration Statement has been declared effective by the SEC and all of the Registrable Securities offered pursuant to such Registration Statement are sold thereunder upon the price and terms offered. There shall be no limitation on the number of Short Form Registrations pursuant to this Section 2(a). Notwithstanding anything to the contrary contained herein, (X) if the SEC specifically prohibits the Registration requested Statement from including all Registrable Securities (“SEC Guidance”) (provided that the Company shall advocate with the SEC for the registration of all or the maximum number of the Registrable Securities permitted by SEC Guidance to be included in such Registration Statement, such maximum number, the “Rule 415 Amount”), then the Company will not be in breach of this provision by following such SEC Guidance, and the Company will file such additional Registration Statements at the earliest practicable date on which the Company is permitted by SEC Guidance to file such additional Registration Statements related to the Registrable Securities, each registering the Rule 415 Amount, seriatim, until all of the Registrable Securities have been registered (and no such additional Registration Statements counting toward any limitation on the number of demands hereunder), and (Y) the Company shall not be required to make any demand registration under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority maximum aggregate offering price of the Registrable Securities requested to be included in such registrationso registered is expected to equal or exceed $5 million.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (CareView Communications Inc)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after Subject to the Closing Dateconditions of this Section 2.3, holders if GP receives a request from Holders who own, or on exercise of a majority all GP Warrants would own, 25% of the Registrable Securities then outstanding may (the "Initiating Holders") that GP file a registration statement under the Securities Act covering the registration of all or a part of such Initiating Holders' Registrable Securities, then GP shall, within 15 days of the receipt thereof, give notice of such request to all Holders, and use its best efforts to effect, as soon as practicable, the registration under the Securities Act of all or any portion of their Registrable Securities pursuant that the Initiating Holders request to a Registration Statement on Form S-1 or be registered and all Registrable Securities owned by any successor form thereto other Holder which notifies GP in writing, within 30 days after receipt of GP's notice contemplated in this Section 2.3, that it intends to participate in the demand registration (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify such notification to include the number of Registrable Securities requested sought to be included in and the Long-Form Registration. Upon receipt intended method or methods of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice distribution of such request Registrable Securities), subject to all other holders of Registrable Securities who shall then have five (5) days from and in accordance with the date such notice is given to notify the Company terms, conditions, procedures, and limitations contained in writing of their desire to be included in such registrationthis Agreement. The Company shall prepare and file with (or confidentially submit to) Initiating Holders may at any time prior to the Commission a Registration Statement on Form S-1 or any successor form thereto covering all effective date of the Registrable Securities that registration statement relating to a requested registration under this Section 2.3 revoke their request by providing written notice to GP, in which case the holders thereof have requested to Registration Expenses will be included borne in such Long-Form Registration within sixty accordance with Section 2.6.
(60b) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company GP shall not be required to effect a Long-Form Registration more than registration pursuant to this Section 2.3:
(i) prior to 120 days after the Original Issue Date, so long as GP is in compliance with its obligations under Section 2.2, or at any time when a registration statement filed pursuant to Section 2.2 is effective under the Securities Act;
(ii) after GP has effected two (2) times for the holders of Registrable Securities as a group; registrations pursuant to this Section 2.3, provided, however, that a Registration Statement registration shall not count as a Long-Form Registration requested under this Section 2(a) having been effected unless and until it has become effective effective, and unless and until the holders requesting Holders participating in such registration are able shall have had the opportunity to register and sell at least a majority 100% of the Registrable Securities initially requested to be included in such registration.registered pursuant thereto, except that a registration the request for which has been revoked shall count as having been effected unless the revocation is based upon material adverse information concerning GP of which the Initiating Holders were not aware at the time of their request;
(biii) After during the Registration Dateperiod starting with the date of filing of, and ending on the Company shall use its best date 90 days following the effective date of, a registration statement pertaining to any underwritten public offering made pursuant to this Section 2.3; provided that GP makes reasonable and diligent good faith efforts to qualify cause such registration statement to become effective; or
(iv) during the period starting with the date of filing of, and remain qualified ending on the date 90 days following the effective date of, a registration statement pertaining to register any underwritten public offering in which the offer and sale of securities under Holders were given the Securities Act opportunity to participate pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified Section 2.4 for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later not less than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all 20% of the Registrable Securities amount of the offering; provided that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its GP uses best efforts to cause such Registration Statement registration statement to be declared effective by the Commission as soon as practicable thereafterbecome effective.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect Initiating Holders intend to distribute the Registrable Securities covered by their request in by means of an underwritten offeringunderwriting, they shall so advise the Company GP as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) 2.3 and the Company GP shall include such information in its written notice to the other holders Holders referred to in Section 2.3(a). In such event, the right of any Holder to include its Registrable SecuritiesSecurities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. The Company All Holders proposing to distribute their securities through such underwriting shall select enter into an underwriting agreement in customary form with the investment banking firm or firms to act as the managing underwriter or underwriters in connection with selected for such offering, which underwriter must be reasonably acceptable to the holders underwriting by GP and approved by Holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwriting. Notwithstanding any other provision of this Section 2.3 to the contrary, if the underwriter advises GP that marketing factors require a limitation of the number of securities to be underwritten offering(including Registrable Securities) then GP shall so advise all Holders of Registrable Securities electing to participate in the registration under this Section 2.3, exceeds and the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to that may be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata among the respective holders thereof basis based on the basis of the number of Registrable Securities owned held by each all such holder.
electing Holders (g) Upon receipt including the Initiating Holders). If any Holder disapproves of the terms of any Demand Registrationsuch underwriting, such Holder may elect to withdraw therefrom by written notice to GP and the Company shall not file any other Registration Statement without underwriter, delivered at least 10 business days prior to the consent effective date of the holders of a majority of the registration statement. Any Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company excluded or withdrawn from such underwriting shall be permitted to file any Registration Statement on Form S-8excluded and withdrawn from the registration.
Appears in 1 contract
Demand Registration. (ai) At any time beginning after the one hundred eighty eightieth (180) days after day following the Closing Original Issue Date, holders of a majority of the Registrable Securities then outstanding Holder may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement the Warrant Shares on Form S-1 or any successor form thereto (each, each a “"Long-Form Registration”"). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested Warrant Shares required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.12 ny-1263898
(bii) After the Registration Date, the The Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities Holder shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement Warrant Shares on Form S-3 or any similar short-form Registration Statement registration (each, each a “"Short-Form Registration” " and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “"Demand Registration”"). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities Warrant Shares requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities having "piggy back" rights or equivalent, if any, who shall then have five (5) ten days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) 30 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
. (c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(diii) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) months 90 days after the effective date of a previous Demand Registration, Shelf Takedown Long-Form Registration or a previous Piggyback Registration in which holders of Registrable Securities were the Holder was permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority 35% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 60 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company's Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once two times in any period of 12 twelve consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.13 ny-1263898
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Datesix (6) month anniversary of an IPO, the holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 S-11 or any successor form thereto (each, each a “Long-Form Registration”); provided that the anticipated aggregate price to the public of Registrable Securities for which registration is requested must be at least $10 million. Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities required to be registered. Upon receipt of such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have ten (10) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall use reasonable best efforts to file, as soon as practicable, a Registration Statement on Form S-11 (or any successor form) and to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than one (1) time for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective, and remains effective for the period required by this Agreement, and the holders requesting such Registration Statement are able to register at least 75% of the Registrable Securities requested to be included in such Registration Statement; and, provided, further, that the Company shall not be required to effect a Long-Form Registration if the Company is, at the time the request for registration is made or within thirty (30) days thereafter, eligible to effect a Short-Form Registration, as provided in Section 2(b).
(b) After an IPO, the Company shall use its reasonable best efforts to qualify and remain qualified to register securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3, at any time after the six (6) month anniversary of an IPO, the holders of any Registrable Securities shall have the right, in addition to the rights contained in Section 2(a), to request an unlimited number of registrations of their Registrable Securities on Form S-3 or any similar short-form registration (each a “Short-Form Registration” and, together with each Long-Form Registration, a “Demand Registration”); provided, however, that the Company shall not be obligated to effect any such Short-Form Registration (i) if the holders of Registrable Securities propose to sell Registrable Securities on Form S-3 at an anticipated aggregate price to the public of less than $1,000,000; or (ii) if the Company has effected two Short-Form Registrations within the twelve (12) month period immediately preceding the date of such request. Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty thirty (6030) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required With respect to effect a Longany Short-Form Registration more than two (2) times for Registration, the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, may request the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to effect a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all registration of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of under a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(di) The Company shall not be obligated to effect any Demand Registration within three during the period that is sixty (360) months after days before the Company’s good faith estimate of the date of filing of, and ending 180 days after, the effective date of a previous Demand Registration, Shelf Takedown Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. Securities.
(ii) The Company may postpone for up to ninety sixty (9060) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement if (a “Shelf Supplement”i) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration would be materially detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; effectiveness of such Registration Statement at such time and (ii) require premature disclosure of material information that the Company has furnishes to the holders of Registrable Securities requesting the registration a bona fide business purpose for preserving as confidential; certificate signed by the Chief Executive Officer of the Company and confirming such determination of the Board. The Company shall not delay a Demand Registration hereunder more than twice in any period of twelve consecutive months or less than sixty (60) days after the termination of the prior delay period.
(iii) render At any time prior to the Company unable to comply with requirements under the Securities Act or Exchange Act; providedeffective date of a Registration Statement, that in such event for a Demand Registration, the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to included therein, may withdraw such request andby providing written notice of such withdrawal to the Company. A request, if such request for a Demand Registration is withdrawn, such Demand Registration so withdrawn by the holders shall not count as one of the permitted Demand Registrations hereunder and permitted pursuant to Section 2(a) or Section 2(b), as applicable, unless (i) such withdrawal arose out of the fault of the Company (in which case the Company shall be obligated to pay all registration expenses in connection with such registration. The withdrawn request), (ii) there occurs an event or series of related events that has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company may delay a Demand Registration from that known to the requesting holders at the time of their request or Shelf Takedown hereunder only once in any period (iii) the requesting holders reimburse the Company for all registration expenses of 12 consecutive monthssuch withdrawn request incurred through the date of such withdrawal.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), ) or Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which that are not Registrable Securities (other than Parity Securities), including any securities to be sold for the account of the Company, without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration registration which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (i) first, the number of shares of Common Stock that the holders of Registrable Securities and Parity Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common StockStock other than holders of Parity Securities) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities and Parity Securities proposed to be sold can be included in such offering, then the Registrable Securities and Parity Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities and Parity Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (Landmark Apartment Trust of America, Inc.)
Demand Registration. (a) At any time beginning one hundred eighty (180) days after After the Closing Dateclosing date of a Qualified Financing and prior to the date on which all Registrable Securities may be sold without registration and without restriction or in accordance with Rule 144 in a single transaction, holders of a majority at least 75% of the Registrable Securities then outstanding may request request, in writing, registration under the Securities Act of all or any portion of their the Registrable Securities that equals or exceeds 75% of the then outstanding Registrable Securities pursuant to a Registration Statement Statement. The Company, in its sole discretion, may prepare a registration statement on a Form S-1 or any equivalent or successor form thereto (each, a “Long-Form Registration”), or on Form S-3 or any equivalent or successor form thereto (a “Short-Form Registration” and, collectively with any Long-Form Registration, a “Demand Registration”). Each Such request for a Long-Form Demand Registration shall must specify the number of Registrable Securities requested to be included in the Long-Form Demand Registration. Upon receipt of any such request, the Company shall will promptly (but in no event later than five (5) 20 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall will then have five (5) 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall will prepare and file with (or confidentially submit to) the Commission SEC a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Date, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Short-Form Registration within thirty (30) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in pursuant to such Shelf Demand Registration within ten (10) 60 days after the date on which the initial request is given and shall will use its best commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission SEC as soon as practicable thereafter, subject to compliance with review by the SEC. The Company is not required to effect a Demand Registration more than once for the holders of Registrable Securities as a group; provided, that a Registration Statement will not count as a Demand Registration requested under this Section 8.01(a) unless and until it has become effective.
(db) The Company will select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with the Demand Registration; provided, that such selection will be subject to the consent of the Investors holding at least a majority of the Registrable Securities initiating the Demand Registration, which consent shall not be unreasonably withheld or delayed. The Company will bear all fees and expenses attendant to the registration of the Registrable Securities requested to be included in the Demand Registration pursuant to Section 8.01, but the Investors will pay any and all underwriting commissions and the expenses of any legal counsel selected by the Investors to represent them in connection with the sale of the Registrable Securities.
(c) The Company is not obligated to effect any Demand Long-Form Registration within three (3) months 90 days after the effective date of a previous Demand Registration, Shelf Takedown Registration Statement or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) ). The Company may postpone for up to 90 days the filing or effectiveness of a Registration Statement or Shelf Takedown for a Demand Registration if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority at all of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall will be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall will not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive monthshereunder.
(ed) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(f) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration or Shelf Takedown. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities Company, in writing writing, that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such underwritten offering, the Company shall will include in such Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall will be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned requested to be included in the Demand Registration by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty after sixty (18060) days after the Closing Datean IPO, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 S-l or any successor form thereto (each, each a “Long-Long- Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) calendar days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) calendar days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 S-l (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two four (24) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) (a). unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority all (100%) of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datean IPO, the Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities shall have the right to request an unlimited number of four (4) registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five ten (510) calendar days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five ten (510) calendar days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) days after the date on which the initial request is given and shall use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(d) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(e) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a(a) or Section (b), Section 2(b), or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities. The Company holders of a majority of the Registrable Securities initially requesting the Demand Registration shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fd) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting included in such Demand Registration registration, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown Registration; (i) first, the number of shares of Common Stock that the holders of Registrable Securities propose to sell, ; and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated pro pro-rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Demand Registration. (a) At any time beginning one hundred eighty (180) days after the Closing Date, holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form S-1 or any successor form thereto (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-1 or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within sixty (60) days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) times for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective and the holders requesting such registration are able to register and sell at least a majority of the Registrable Securities requested to be included in such registration.
(b) After the Registration Datean IPO, the Company shall use its best reasonable efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as Once the Company shall have has qualified for the use of a Registration Statement on Form S-3 or any successor form thereto, the holders of Registrable Securities each Investor shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their the Registrable Securities pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form S-3 or any successor form thereto covering all of the Registrable Securities that the holders thereof Investors have requested to be included in such the Short-Form Registration within thirty (30) 30 days after the date on which the initial request is given and shall use its best reasonable efforts to cause such the Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(cb) At such time as Once the Company shall have has qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities each Investor shall have the right to request registration under the Securities Act of all or any portion of their that Investor’s Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have an Investor has requested to be included in such the Shelf Registration within ten (10) 30 days after the date on which the initial request is given and shall use its best reasonable efforts to cause such the Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(dc) The Company shall not be obligated to effect any Demand Registration within three (3) months after the effective date of a previous Demand Registration, Shelf Takedown or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register the offer and sale under the Securities Act, and actually sold, at least a majority of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 90 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Board determines in its reasonable good faith judgment that such the Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be if Investors are entitled to withdraw such the request and, if such the request for a Demand Registration is withdrawn, such the Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such the registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once in any period of 12 consecutive months.
(ed) If the holders of Investor who requested the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect elects to distribute the Registrable Securities covered by their its request in an underwritten offering, they it shall so advise the Company as a part of their its request made pursuant to Section 2(a), Section 2(b), ) or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities). The Company electing Investor shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such the offering; provided, that the selection shall be subject to the consent of the Company, which underwriter must consent shall not be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offeringunreasonably withheld or delayed.
(fe) The Company shall not include in any Demand Registration or Shelf Takedown any securities which that are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such the Demand Registration or Shelf Takedown, which consent shall not be unreasonably withheld or delayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities Investors in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf Takedown, including all Registrable Securities and all other shares of Common Stock proposed to be included in such the underwritten offering, exceeds the number of shares of Common Stock which that can be sold in such the underwritten offering and/or the number of shares of Common Stock proposed to be included in such the Demand Registration or Shelf Takedown would adversely affect the price per share of the Common Stock proposed to be sold in such the underwritten offering, the Company shall include in such the Demand Registration or Shelf Takedown (i) first, the shares of Common Stock that the holders of Registrable Securities Investors propose to sellsell (pro rata in accordance with the number of shares of Common Stock proposed to be sold by each), and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such those Persons in such any manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed to be sold can be included in such the offering, then the Registrable Securities that are included in such the offering shall be allocated pro rata among the respective holders thereof (other than Investors) on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract
Sources: Registration Rights Agreement (FlexEnergy Green Solutions, Inc.)
Demand Registration. (ai) At any time beginning after the one hundred eighty eightieth (180) days after day following the Closing Original Issue Date, holders of a majority of the Registrable Securities then outstanding Holder may request registration under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement the Warrant Shares on Form S-1 or any successor form thereto (each, each a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities requested Warrant Shares required to be included in the Long-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities having “piggy back” rights or equivalent, if any, who shall then have five (5) ten days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-1 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Long-Form Registration filed within sixty (60) 30 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than two (2) five times for by the holders of Registrable Securities as a groupHolder; provided, provided that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a6(a)(i)(i) unless and until it has become effective and the holders requesting such registration are Holder is able to register and sell at least a majority 35% of the Registrable Securities Warrant Shares requested to be included in such registration.
(bii) After the Registration Date, the The Company shall use its best efforts to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or any successor form theretoS-3, the holders of Registrable Securities Holder shall have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement Warrant Shares on Form S-3 or any similar short-form Registration Statement registration (each, each a “Short-Form Registration” and, collectively together with each Long-Form Registration and Shelf Registration (as defined below)Registration, a “Demand Registration”). Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities Warrant Shares requested to be included in the Short-Form Registrationregistered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities having “piggy back” rights or equivalent, if any, who shall then have five (5) ten days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission cause a Registration Statement on Form S-3 (or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested form) to be included in such Short-Form Registration filed within thirty (30) 30 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(c) At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3 or the then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement”), the holders of Registrable Securities shall have the right to request registration under the Securities Act of all or any portion of their Registrable Securities for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”). Each request for a Shelf Registration shall specify the number of Registrable Securities requested to be included in the Shelf Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have five (5) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Shelf Registration Statement covering all of the Registrable Securities that the holders thereof have requested to be included in such Shelf Registration within ten (10) days after the date on which the initial request is given and shall use its best efforts to cause such Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(diii) The Company shall not be obligated to effect any Demand Long-Form Registration within three (3) months 90 days after the effective date of a previous Demand Registration, Shelf Takedown Long-Form Registration or a previous Piggyback Registration in which holders of Registrable Securities were the Holder was permitted to register the offer and sale under the Securities Actregister, and actually sold, at least a majority 35% of the shares of Registrable Securities requested to be included therein. The Company may postpone for up to ninety (90) 60 days the filing or effectiveness of a Registration Statement for a Demand Registration or a supplement (a “Shelf Supplement”) for the purpose of effecting an offering pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Takedown”) if the Company’s Board determines in its reasonable good faith judgment that such Demand Registration or Shelf Takedown would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering organization or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event the holders of a majority of the Registrable Securities initiating such Demand Registration or Shelf Takedown shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all registration expenses in connection with such registration. The Company may delay a Demand Registration or Shelf Takedown hereunder only once two times in any period of 12 twelve consecutive months.
(eiv) If the holders of the Registrable Securities initially requesting a Demand Registration or Shelf Takedown elect Holder elects to distribute the Registrable Securities Warrant Shares covered by their its request in an underwritten offering, they it shall so advise the Company as a part of their its request made pursuant to Section 2(a), Section 2(b), 6(a)(i)(i) or Section 2(c) and the Company shall include such information in its notice to the other holders of Registrable Securities6(a)(ii). The Company Holder shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering, which underwriter must be reasonably acceptable to the holders of a majority of the Registrable Securities initially requesting the offering.
(fv) The Company shall not include in any Demand Registration or Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities initially requesting such Demand Registration Holder, which consent shall not be unreasonably withheld or Shelf Takedowndelayed. If a Demand Registration or Shelf Takedown involves an underwritten offering and the managing underwriter of the requested Demand Registration or Shelf Takedown advises the Company and the holders of Registrable Securities in writing that in its reasonable and good faith opinion the number of shares of Common Stock proposed to be included in the Demand Registration or Shelf TakedownRegistration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such Demand Registration or Shelf Takedown registration would adversely affect the price per share of the Common Stock Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration or Shelf Takedown (iA) first, the shares of Common Stock that the holders of Registrable Securities propose to sell, and (ii) second, the shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities proposed Warrant Shares requested to be sold can be included in such offeringregistration by the Holder, then the and (B) second, any other Registrable Securities that are the Company may permit to be included in such offering shall be registration, allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder.
(g) Upon receipt of any Demand Registration, the Company shall not file any other Registration Statement without the consent of the holders of a majority of the Registrable Securities requesting registration until the consummation of the sale of Registrable Securities contemplated by the applicable Demand Registration; provided that the Company shall be permitted to file any Registration Statement on Form S-8.
Appears in 1 contract