Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period. (b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders. (c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities. (d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 4 contracts
Sources: Stockholders Agreement (Parkway, Inc.), Stockholders Agreement (Parkway, Inc.), Voting Agreement (Cousins Properties Inc)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Stockholders (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Demand Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Members on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 3 contracts
Sources: Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings LLC), Registration Rights Agreement (STR Holdings (New) LLC)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined The Company may include in the Merger Agreement), the Holders of a majority of Demand Registration Registrable Securities shall have for the right to require account of the Demanding Holders and shares of Common Stock for the account of the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws shareholders exercising contractual piggy-back registration rights or other shareholders, on the same terms and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of conditions as the Registrable Securities that are included therein for the Company has been so requested to registeraccount of the Demanding Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate if the managing underwriter(s) of any underwritten offering that is the Underwritten Offering, provided that subject of such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) Demand Registration have informed the Company shall (together with in writing that in their opinion the Holders proposing to distribute their total number of securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with that the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofDemanding Holders, the Company and any other shareholders intend to and for include in such offering exceeds the benefit of the underwriter(s) shall also number that can be made sold in such offering within a price range acceptable to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in of a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition majority of the Registrable Securities disposed of by such Holder pursuant requested to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnairesbe included therein, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate then (ax) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed Registrable Securities to be offered for the account of any stockholders, other than the Demanding Holders, shall be reduced (to zero, if necessary) pro rata in proportion to the respective number of Registrable Securities requested to be registered by such shareholders; and (y) thereafter, if necessary, the number of Registrable Securities to be offered for the account of the Company shall be reduced (to zero, if necessary), to the extent necessary to reduce the total number of Registrable Securities requested to be included in such registration exceeds offering to the Underwriters’ Maximum Numbernumber of Registrable Securities, then if any, recommended by such managing underwriter(s) (i) and if the Company shall so advise all Holders number of Registrable Securities to be included in such Underwritten Offering offered for the account of shareholders other than the Demanding Holders and (ii) for the account of the Company will be obligated has been reduced to zero, and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein in such offering by each such Holder. No shares the Demanding Holders exceeds the number of Common Stock held by any Person other than Registrable Securities held recommended by such managing underwriter(s), then the number of Registrable Securities to be offered for the account of the Demanding Holders shall be included reduced pro rata in a Demand Registration without proportion to the prior written consent respective number of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration registered by the Holders are included in such registration, Demanding Holders); and (ii) if the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, offering that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop ordersuch Demand Registration is not underwritten, injunction or only Demanding Holders, and no other order or requirement of party (including the SEC or any other governmental or administrative agencyCompany), or if any court prevents or otherwise limits the sale of the shall be permitted to include Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) unless the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Demanding Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect owning a Demand Registration pursuant to this Section 4.2 majority of the Registrable Securities included in such registration. In circumstances not including Demand Registration consent in writing to the events described in the immediately two preceding sentences inclusion of this Section 4.2(d), each Holder of such Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)therein.
Appears in 3 contracts
Sources: Registration Rights Agreement (Thomas Group Inc), Revolving Credit Loan Agreement (Thomas Group Inc), Registration Rights Agreement (Thomas Group Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Date, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 3.9 of this Agreement; provided, that that
(i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numbermaximum number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numbermaximum number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a). If (i) a registration requested pursuant to this Section 4.2 3.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 3.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 3.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d3.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a3.2(a).
Appears in 3 contracts
Sources: Voting Agreement (Cousins Properties Inc), Stockholders Agreement (Cousins Properties Inc), Voting Agreement (Parkway Properties Inc)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Lockup Date, the Holders of Company shall receive a majority of Registrable Securities shall have written request from the right to require Investor that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of the Registrable Securities specified in such written request (a “Demand Registration”) by delivering a written request therefor to the Company (i) ), specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowinformation set forth under Section 6.4(i), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 6.1(e), the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Investor has requested registration under this Section 6.1, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided, that the Company has been so requested shall not be required to register; provided, however, that effect (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) such Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed period and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings such Demand Registrations in any twelve (12) month period, and total.
(b) At any time prior to the effective date of the registration statement relating to such registration, the Investor may revoke such Demand Registration request by providing a notice to the Company revoking such request, provided, that such Demand Registration shall count as having been effected for purposes of the proviso to Section 6.1(a) above unless the Investor pays all Registration Expenses in any Underwritten Offering during any lock-up period required connection with such revoked Demand Registration within thirty (30) days of written request therefor by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersCompany.
(c) IfFor any Public Offering relating to a Demand Registration, the Company shall select, with the consent of the Investor (not to be unreasonably withheld, delayed or conditioned), the lead underwriter and any additional underwriters in connection with an Underwritten the offering. In connection with any Public Offering, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take all other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering.
(d) If a Demand Registration involves an underwritten Public Offering and the managing underwriter(s) advise advises the Company that and the Investor that, in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Numberview, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein in such registration by each such Holder. No shares the Investor, the Company and for the account of Common Stock held by any Person other than Persons exceeds the largest number of Registrable Securities held that can be sold without having a material adverse effect on such offering, including the price at which such Registrable Securities can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Holders Investor; and
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other Persons, with such priorities among them as the Company shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiesdetermine.
(de) A Upon notice to the Investor, the Company may postpone effecting a registration pursuant to this Section 6.1 on up to two (2) occasions during any three hundred and sixty-five (365) consecutive day period for a reasonable time specified in the notice but not exceeding ninety (90) days in the aggregate (which period may not be extended or renewed), if (i) the Company shall determine in good faith, based on advice from independent investment bankers, that effecting the registration would materially and adversely affect an offering of securities of the Company, the preparation of which had then been commenced, or (ii) the Company is in possession of material non-public information, the disclosure of which during the period specified in such notice the Company believes in good faith would not be in the best interests of the Company. If the Company so postpones effecting a registration, the Investor will be entitled to withdraw its registration request and, if such request is withdrawn, such registration request will not count for purposes of the limitation set forth in the proviso to Section 6.1(a).
(f) Notwithstanding any provision in this Section 6.1 or elsewhere in this Agreement, no provision relating to the registration of Registrable Securities shall be deemed construed as permitting the Investor to have effect a Transfer of securities that is otherwise prohibited by the terms of this Agreement or any other agreement between the Investor and the Company or any of its Subsidiaries.
(g) Notwithstanding the foregoing, no Demand Registration shall count as having been effected as a for purposes of the proviso to Section 6.1(a) (and the Company shall pay or reimburse all Registration Expenses pursuant to Section 6.5) if (i) the registration statement relating to such request is not declared effective within one hundred and eighty (180) days of the date such registration statement is first filed with the SEC and the Investor revokes such Demand Registration unless prior to such registration statement being declared effective, (ii) prior to the Registration Statement relating thereto has been declared effective by the SEC, sale of at least 75% of the Registrable Securities requested to be included in the applicable registration relating to such request, such registration is adversely affected by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason and the Company fails to have such stop order, injunction or other order or requirement removed, withdrawn or resolved to the Investor’s reasonable satisfaction within thirty (30) days of the date of such order, or if (iii) the conditions to closing specified in the underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by the Investor).
(h) Upon written request of the Investor following the Lockup Date, the Company will use its commercially reasonable efforts to qualify for registration on and to promptly file, Form S-3 or any court prevents comparable or otherwise limits successor form or forms or any similar short-form registration (“Short-Form Registration”), and such Short-Form Registration will be a “shelf” registration statement providing for the registration, and the sale on a continuous or delayed basis, of the Registrable Securities pursuant to Rule 415. Upon filing a Short-Form Registration, the registrationCompany will, if applicable, use its commercially reasonable efforts to: (i) cause such Short-Form Registration to be declared effective, and (ii) keep such Short-Form Registration effective with the SEC at all times and re-file such Short-Form Registration upon its expiration. The Company shall cooperate in each case less than all any shelf take-down by amending or supplementing the prospectus statement related to such Short-Form Registration as may be requested by the Investor or any transferees or as otherwise required, until the Investor or any transferees who would require such registration to effect a sale of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of no longer hold the Registrable Securities covered by such registration, then or until the time specified in Section 6.14 hereof. The Company shall continue to be obligated to effect a Demand will pay all Registration pursuant to this Section 4.2 of the Registrable Securities included Expenses incurred in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or connection with any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Short-Form Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 3 contracts
Sources: Stockholder Agreement (China Investment Corp), Stock Purchase Agreement (China Investment Corp), Stockholder Agreement (Aes Corp)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or commencing one year after the date that is 180 days after Effective Date of the Closing Date (as defined in the Merger Agreement)Public Offering, and expiring five years thereafter, the Holders of a majority of Registrable Securities representing more than 50% of such securities at that time outstanding shall have the right (which is in addition to require the registration rights under Section 7.2), exercisable by written notice to the Company, to have the Company prepare and file with the Commission at the sole expense of the Company, on one occasion, a registration statement and/or such other documents, including a prospectus, and/or any other appropriate disclosure document as may be reasonably necessary in the opinion of both counsel for the Company and counsel for the Representative and Holders, in order to file comply with the provisions of the Act, so as to permit a Registration Statement registering for public offering and sale all or part of their respective Registrable Securities under for nine consecutive months (or such longer period of time as permitted by the Securities Act (a “Demand Registration”Act) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) Holders of any of the Registrable Securities that who notify the Company within ten days after being given notice from the Company of such request (a "Demand Registration"). A Demand Registration shall not be counted as a Demand Registration hereunder until such Demand Registration has been declared effective by the SEC and maintained continuously effective for a period of at least nine months, subject to reasonable "black-out" periods in which event such nine months shall be extended by a number of days equal to the duration and the "black-out" periods, or such shorter period when all Registrable Securities included therein have been sold in accordance with such Demand Registration, provided that a Demand Registration shall be counted as a Demand Registration hereunder if the Company ceases its efforts in respect of such Demand Registration at the request of the majority Holders making the demand for a reason other than a material and adverse change in the business, assets, prospects or condition (financial or otherwise) of the Company and its subsidiaries taken as a whole.
(b) The Company covenants and agrees to give written notice of any registration request under this Section 7.3 by the majority of the Holders to all other registered Holders of any of the Registrable Securities within ten days from the date of the receipt of any such registration request.
(c) In addition to the registration rights under Section 7.2 and subsection (a) of this Section 7.3, at any time commencing one year after the Effective Date of the Public Offering, and expiring five years thereafter, the Holders of any Registrable Securities representing more than 50% of such securities shall have the right, exercisable by written request to the Company, to have the Company prepare and file, on one occasion, with the Commission a registration statement or any other appropriate disclosure document so requested as to registerpermit a public offering and sale for nine consecutive months (or such longer period of time as permitted by the Act) by any such Holder of Registrable Securities; provided, however, that the provisions of Section 7.4(b) shall not apply to any such registration request and registration and all costs incident thereto shall be at the expense of the Holder or Holders participating in the offering pro-rata.
(d) Any written request by the Holders made pursuant to this Section 7.3 shall:
(i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of Specify the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by which the Holders shall be included in a Demand Registration without intend to offer and sell and the prior written consent minimum price at which the Holders intend to offer and sell such securities;
(ii) State the intention of the holders Holders to offer such securities for sale;
(iii) Describe the intended method of a majority in interest distribution of such securities; and
(iv) Contain an undertaking on the part of the Registrable SecuritiesHolders to provide all such information and materials concerning the Holders and take all such action as may be reasonably required to permit the Company to comply with all applicable requirements of the Commission and to obtain acceleration of the effective date of the registration statement.
(de) A In the event the Company receives from the Holders of any Registrable Securities representing more than 50% of such securities at that time outstanding, a request that the Company effect a registration will not be deemed on Form S-3 with respect to have been effected the Registrable Securities and if Form S-3 is available for such offering, the Company shall, as a Demand Registration unless soon as practicable, effect such registration as would permit or facilitate the Registration Statement relating thereto has been declared effective by the SEC, at least 75% sale and distribution of the Registrable Securities requested to be included as are specified in the registration by the Holders are included request. All expenses incurred in such registration, and the Company has complied in all material respects connection with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been Subsection (e) shall be borne by the Company. Registrations effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does Subsection (e) shall not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration counted as registrations pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause Sections 7.3 (iia) of the proviso to Section 4.2(aand 7.3 (c).
Appears in 3 contracts
Sources: Representative's Warrant Agreement (U S Remodelers Inc), Representative's Warrant Agreement (U S Remodelers Inc), Representative's Warrant Agreement (U S Remodelers Inc)
Demand Registration. (a) Subject to the provisions hereoflimitations contained in Section 2(b), at any time on or after the date that is 180 days three months after the Closing Date (as defined the “Rights Effective Date”), Primary Holders may request by written notice delivered to the Company (a “Demand Notice”) that the Company register under the Securities Act all or any portion of the Registrable Securities then held by such Primary Holders, for sale in the Merger Agreementmanner specified in such notice (including, but not limited to, an underwritten public offering) (a “Demand Registration”). In each such case, the Holders of a majority Demand Notice shall specify the number of Registrable Securities for which registration is requested and the proposed manner of disposition of such securities.
(b) The Company shall have use its best efforts to file with the right SEC within thirty (30) days after the Company’s receipt of a Demand Notice a registration statement for the public offering and sale, in accordance with the method of disposition specified by Primary Holders, of the number of Registrable Securities specified in such notice, and thereafter use its commercially reasonable efforts to require cause such registration statement to become effective within sixty (60) days after its filing. Such registration statement may be on Form S-3 or another appropriate form that the Company is eligible to use and that is reasonably acceptable to the managing underwriter, if any; provided that if the Company is a WKSI, an automatic shelf registration on Form S-3 will, at the request of Primary Holders, cover an unspecified number of shares of Common Stock to be sold by the Company and Holders and the Company shall file such a Registration Statement registering for sale all or part shelf registration statement within fifteen (15) days after receipt of their respective a request by the Primary Holders therefor; provided further that if requested at least fifteen (15) days prior to the Rights Effective Date, the Company shall file such a shelf registration statement on the Rights Effective Date.
(c) The Company shall not have any obligation hereunder to register any Registrable Securities under Section 2(a)(ii) unless it shall have received a request from Primary Holders to register at least ten percent (10%) of the aggregate amount of Registrable Securities held by all of the Primary Holders as of the date of such request.
(d) If the Company is required to use its best efforts to register Registrable Securities in a registration initiated upon the demand of Primary Holders pursuant to Section 2(a)(ii) of this Agreement and the Approved Underwriters, if any, for such offering advise that the inclusion of all securities sought to be registered pursuant to Section 2 hereof may interfere with an orderly sale and distribution of or may materially adversely affect the price of such offering, then the Company will include in such offering, first, the aggregate number of Registrable Securities that are participating in such offering pursuant to Sections 2(a)(ii) or 3(a), allocated pro rata among the Registrable Securities based on the number of shares of Common Stock beneficially owned by each such Holder on the date that the Demand Notice is received by the Company which the Approved Underwriters, if any, advise will not likely have such effect, and second, all other securities requested or proposed to be included in such registration (including shares of Common Stock to be sold for the account of the Company).
(e) Upon the demand of Primary Holders pursuant to Section 2(a)(ii) made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” of shares of Common Stock off of an effective shelf registration statement on Form S-3 pursuant to Rule 415 of the Securities Act (a “Demand RegistrationShelf Takedown”) by delivering a written request therefor ), including, subject to the limitations set forth in Section 2(b), an underwritten Shelf Takedown. Notwithstanding the foregoing, such Primary Holders may not demand a Shelf Takedown for an offering that will result in the imposition of a lockup on the Company and the Primary Holders unless the shares requested to be sold by the Primary Holders in such takedown have an aggregate market value (ibased on the most recent closing price of the Common Stock at the time of the demand) specifying the number of at least $10 million.
(f) If any Demand Registration of Registrable Securities to be included is in such registration by such Holder or Holders, (ii) specifying whether the intended method form of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company Primary Holders shall (x) promptly notify all Holders from whom select and obtain one or more investment banking firms of national or regional reputation to act as the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky managing underwriter or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) underwriters of the Registrable Securities that the Company has been so requested to registeroffering; provided, however, that such firm or firms shall, in any case, also be approved by the Company, such approval not to be unreasonably withheld, delayed or conditioned. An investment banking firm or firms selected pursuant to this Section 2(a)(vi) shall be referred to as the “Approved Underwriter” herein.
(ig) Upon the demand of Holders, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf registration statement on Form S-3 in order to register up to the number of shares previously taken down off of such shelf by such Holders shall and not make yet “reloaded” onto such shelf registration statement. The Holders and the Company will consult and coordinate with each other in order to accomplish such replenishments from time to time in a request for sensible manner.
2.2 The obligations of the Company to effect, or to take any action to effect, a Demand Registration under or an underwritten Shelf Takedown shall be limited as follows:
(a) In connection with the provisions of this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002, (ii) the Primary Holders will not be entitled to may require the Company to effect no more than three (3) Demand Registrations or underwritten Shelf Takedowns in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any 365 day period during the six (6) month year period commencing on the Rights Effective Date. After the expiration of the such period, the Company shall no longer have any obligation to file Demand Registrations at the request of the Primary Holders.
(b) The offering For the avoidance of doubt, until the six (6) year anniversary of the Rights Effective Date, there shall be no limit on the number of non-underwritten Shelf Takedowns that Primary Holders may request (but after such date, Primary Holders shall no longer have the right to make any such requests), and, to the extent that Registrable Securities are not covered by an effective shelf registration on Form S-3, the Primary Holders shall be entitled to demand that the Company effect such a shelf-registration, notwithstanding the limits set forth in this Section 2(b) and no such demand for a shelf registration statement shall count against the limits set forth in this Section 2(b).
2.3 Notwithstanding any other provision of this Agreement, the Company shall have the right to defer or suspend the filing or effectiveness of a registration statement relating to any registration requested under Section 2(a) for a reasonable period of time not to exceed 90 days if a prior registration statement of the Company for an underwritten, public offering by the Company of its securities was declared effective by the SEC less than 120 days prior to the anticipated effective date of the requested registration.
2.4 No registration of Registrable Securities under this Section 2 shall relieve the Company of its obligation (if any) to effect registrations of Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders3.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 3 contracts
Sources: Registration Rights Agreement (Lightyear Fund Ii Lp), Merger Agreement (Vantagesouth Bancshares, Inc.), Merger Agreement (YADKIN FINANCIAL Corp)
Demand Registration. (a) Subject to the provisions hereof, If at any time on following completion of the Initial Public Offering, subject to the terms of any “lock-up” agreement entered into with one or after the date that is 180 days after the Closing Date more underwriters (as defined in the Merger Agreementunless waived by such underwriter(s)), the Holders of Company shall receive a majority of Registrable Securities request (each such request shall have the right be referred to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (herein as a “Demand Registration”) by delivering from a written request therefor Shareholder or group of Shareholders (the requesting Shareholder(s) shall be referred to herein as the “Requesting Shareholder”), holding at least thirty percent (30%) of the Registrable Securities then outstanding, that the Company effect the registration under the Securities Act (i) specifying for the number first Public Offering of the Company after the completion of the Initial Public Offering (the “Follow-On Offering”), at least twenty percent (20%) of the Requesting Shareholder’s Registrable Securities to be included in such registration by such Holder then outstanding (or Holdersany lesser percentage if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $10,000,000), or (ii) after the completion of the Follow-On Offering, all or any portion of the Requesting Shareholder’s Registrable Securities and, in each case, specifying whether the intended method of disposition thereof thereof, then the Company shall as promptly as practicable following the date of receipt by the Company of such request give notice of such Demand Registration at least fifteen (10) days after receipt of such Demand Registration to the other Shareholders, if any, and thereupon shall (i) as soon as practicable, and in any event within forty five (45) days after the date the Demand Registration is pursuant to an Underwritten Offering (as defined below)given by the Requesting Shareholder, file a registration statement under the Securities Act, and (iiiii) containing use its commercially reasonable efforts to effect, as expeditiously as possible, and in any event within one hundred twenty (120) days after the date the Demand Registration is given by the Requesting Shareholder, the effectiveness of the registration statement, in each case covering:
(i) subject to the restrictions set forth in Sections 2.01(e), all information about such Holder required Registrable Securities for which the Requesting Shareholder has requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(e), all other Registrable Securities of the same class as those requested to be included in registered by the Requesting Shareholder that any other Shareholders (all such Registration Statement Shareholders, together with the Requesting Shareholder, the “Registering Shareholders”), if any, have requested the Company to register pursuant to this Section 2.01, by request received by the Company within seven Business Days after such Shareholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with applicable law. As soon the intended methods thereof as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsaforesaid) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringregistered, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofthat, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $10,000,000. In no event shall the Company be required to effect more than two (2) Demand Registrations pursuant to this Section 2.01.
(b) Promptly after the expiration of the seven-Business Day period referred to in Section 2.01(a)(ii), the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration by the Holders are included in statement relating to such registration, and the Requesting Shareholder may revoke such request, without liability, by providing a notice to the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedrevoking such request. Notwithstanding clause (d) below, howevera request, that ifso revoked, after it has become effective, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Statement Expenses in connection with such revoked request) or (ii) the related offerRequesting Shareholder reimburses the Company for all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses) of such revoked request.
(c) The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, sale regardless of whether such Registration is effected, unless the Requesting Shareholder elects to pay such Registration Expenses as described in the last sentence of Section 2.01(b).
(d) A Demand Registration shall not be deemed to have occurred unless the registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 days (or distribution of such shorter period in which all Registrable Securities thereunder of the Registering Shareholders included in such registration have actually been sold thereunder), provided that a Demand Registration shall not be deemed to have occurred if, after such registration statement becomes effective, such registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits court.
(e) If the sale of the Registrable Securities pursuant Requesting Shareholder intends to the registration, and in each case less than all of distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the effective Company as part of their request pursuant to section 2.01, and the Company shall include such information in their notice to the other Shareholders. If a Demand Registration Statement involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are actually not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be included in such registration by all Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative number of Registrable Securities held by each such Shareholder, or in such other proportion as shall mutually be agreed to by all such Registering Shareholders); and
(ii) second, any securities proposed to be registered by the selling Holder or Holders Company (including for the benefit of any other Persons not party to this Agreement).
(f) The Company may postpone effecting a registration pursuant to this Section 2.01 on two occasions during any period of twelve consecutive months for a reasonable time specified in the Registration Statementnotice but not exceeding 90 days in the aggregate in any period of twelve consecutive months (which period may not be extended or renewed), if the Company furnishes to the Requesting Shareholder a certificate signed by the Company’s chief executive officer stating that (i) effecting the registration would materially and adversely interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company or (ii) if, in effecting the case registration would require the premature disclosure of an Underwritten Offeringmaterial information that the Company has a bona fide business purpose to preserve as confidential. In addition, the Company fails shall not be obligated to provide Full Cooperationeffect, then such or to take any action to effect, any registration will be deemed not pursuant to have been effected for purposes of clause Section 2.01 during the period that is thirty (ii30) days before the Company’s good faith estimate of the proviso to Section 4.2(a). If date of filing of, and ending on a date that is ninety (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (4590) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationeffective date of, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all Company-initiated registration (other than a registration on Form S-8 or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationsuccessor or similar forms), provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso statement to Section 4.2(a)become effective.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Sol-Gel Technologies Ltd.), Registration Rights Agreement (Sol-Gel Technologies Ltd.)
Demand Registration. (a) Subject to Except as provided in Section 2.2(b) below, upon the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), written request of the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act owning not less than ten percent (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations10%) of the Registrable Securities that the Company has been effect pursuant to this Agreement the registration of the resale of the Registrable Securities under the Securities Act (which request shall specify the Registrable Securities so requested to registerbe registered by each such Holder, the Proposed Amounts thereof and the intended method of disposition by such Holders), the Company will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of the resale of the Proposed Amount of Registrable Securities, for disposition in accordance with the intended method of disposition stated in such request; provided, however, however that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations if in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering good faith judgment of the Registrable Securities pursuant to such Demand Registration may be in the form Board of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval Directors of the Company, which approval shall not such registration would be unreasonably withheld or delayed detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall (together with furnish to such Holders a certificate signed by an executive officer of the Holders proposing Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to distribute their securities through defer the filing of such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with registration statement, then the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement Company shall have indemnification provisions the right to defer such filing for the period during which such registration would be detrimental, provided that the Company may not defer the filing for a period of more than 120 days after receipt of the request of such Holders. The Company shall be entitled to include in substantially any registration statement filed pursuant to this Section 2.2: (A) securities of the form as set forth in Section 4.9 Company held by any other security holder of this Agreement; provided, that (i) the representations and warranties byCompany, and the other agreements on the part of(B) in an underwritten public offering, securities of the Company to be sold by the Company for its own account, except as and for to the benefit extent that (x) in the opinion of the underwriter(s) shall also be made to and for the benefit managing underwriter (if such method of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder disposition shall be required to make any representations and warranties toan underwritten public offering), or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) such inclusion would adversely affect the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition marketing of the Registrable Securities disposed of to be sold by such Holder pursuant to such Underwritten Offering. No Holder may participate Holders or (y) in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms reasonable opinion of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf Holders owning a majority of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders Proposed Amount of Registrable Securities to be included in (if such Underwritten Offering and (ii) method of disposition is not an underwritten public offering), such inclusion would adversely affect the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, price at which such Registrable Securities may be sold pursuant to be allocated pro rata among the Holders thereof on the basis plan of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretodistribution; provided, however, that if, after such registration statement has been filed, the managing underwriter believes that the inclusion of all securities requested to be included in the proposed underwritten public offering would adversely affect the marketing of the Registrable Securities or, in the case of a distribution that is not an underwritten public offering, if such Holders owning a majority of the Proposed Amount of Registrable Securities reasonably believe that the inclusion of all securities requested to be included in such registration statement would adversely affect the price at which the Registrable Securities may be sold pursuant to the plan of distribution, then the aggregate amount of securities to be offered by the Company and such other security holders of the Company shall be reduced so as to permit the offering of all Registrable Securities requested by all the Holders of the entire Proposed Amount of Registrable Securities without such adverse effects.
(b) The Company shall not be obligated to take any action to effect any registration requested by the Holders pursuant to Section 2.2(a) hereof (i) after the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (ii) for a period of two (2) years after the Company has effected one such registration pursuant to Section 2.2(a) hereof and such registration has been declared or ordered effective, such two year period to commence on the date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the expiration date of the Warrants.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto by reason of the refusal of Holders owning a majority of the Proposed Amount to proceed shall be deemed to have been effected by the Company unless the Holders shall have elected to pay all Company Registration Expenses in connection with such registration, (iii) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, court for any reason other than a misrepresentation or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered an omission by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementHolders, or (iiiii) if, if the conditions to closing specified in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied other than by reason of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration some wrongful act or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution omission, or act or omission in bad faith, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holders.
Appears in 3 contracts
Sources: Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Members (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Stockholders on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings, Inc.)
Demand Registration. (a) Subject to the provisions hereof, If at any time on following the first anniversary of the Effective Date, the Company shall receive a request from any Stockholder, or after the date group of Stockholders, that is 180 days after the Closing Date (as defined holds in the Merger Agreement)aggregate 20% (or, if the Holders First Public Offering has occurred, any Stockholder, or group of a majority Affiliated Stockholders, that holds in the aggregate 10%) or more of Registrable Securities shall have the right to require then outstanding Common Stock (the "Requesting Stockholder") that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) of all or any portion of such Requesting Stockholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give notice of such requested registration (xeach such request shall be referred to herein as a "Demand Registration") promptly notify all Holders from whom at least 20 Business Days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the other Stockholders and (y) thereupon shall use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(h) andSection 2.09, all other Registrable Securities that any other governmental requirements or regulationsStockholders (all such other Stockholders, together with the Requesting Stockholders, the "Registering Stockholders") have requested the Company to register by request received by the Company within 20 Business Days after such Stockholders receive the Company's notice of the Demand Registration (such request shall include all information with respect to such Stockholder required to effect the registration of such Stockholder's Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that so to be registered, provided that, subject to Section 2.01(d)(g), the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than 4 Demand Registrations (at least one (1) Demand Registration in any six (6) month period.
(b) The offering of which shall be available for use after the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”First Public Offering has occurred). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and provided further that the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then a Demand Registration unless (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof aggregate market price or fair value on the basis date of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% request of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $25,000,000 or (ii) the number of Common Shares requested to be registered pursuant to such Demand Registration equals or exceeds 10% of then outstanding Common Shares on the date of such request. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(b) Promptly after the expiration of the 20 Business Day-period referred to in Section 2.01(a)(ii), the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration by the Holders are included in statement relating to such registration, and the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedrevoking such request. A request, howeverso revoked, that if, after it has become effective, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Statement Expenses in connection with such revoked request), or (ii) the related offerRequesting Stockholders reimburse the Company for all Registration Expenses of such revoked request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, sale regardless of whether such Registration is effected, except as set forth in Section 2.01(b).
(d) Any registration statement filed pursuant to a Demand Registration shall be a shelf registration statement that complies with the provisions of Rule 415 under the Securities Act, unless otherwise agreed by the Requesting Stockholder and at least one other Stockholder, or distribution group of Affiliated Stockholders, if any, that holds in the aggregate 20% or more of the then outstanding Registrable Securities thereunder (a "Second Large Holder"); provided that the first registration statement filed pursuant to a Demand Registration after the First Public Offering shall be a shelf registration statement that complies with the provisions of Rule 415 under the Securities Act.
(e) Unless otherwise agreed with the Requesting Stockholder and at least one Second Large Holder, if any, any registration of the Company's Common Stock pursuant to this Section 2.01 shall be effected solely for the purpose of registering the offer and sale of the Common Stock held by the Registering Stockholders and shall not be effected for any offer or sale by the Company of securities by the Company.
(f) If requested by any Stockholder, or group of Stockholders, that holds in the aggregate 20% (or, if the First Public Offering has occurred, any Stockholder, or group of Affiliated Stockholders, that holds in the aggregate 10%) or more of the then outstanding Common Stock, the Company shall use its best efforts to have the Common Stock quoted on the Nasdaq National market or listed on a national securities exchange, in each case as designated by such Requesting Stockholder so long as the Company is subject to the reporting requirements under the Exchange Act, whether or not as a result of a Demand Registration, and otherwise qualifies for such quotation or listing.
(g) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days, or in the case of a shelf registration statement, two years (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes the subject of effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not including registration statement have been sold thereunder; or
(ii) if the events described Maximum Offering Size is reduced in accordance with Section 2.01(h) such that less than 662/3% of the immediately two preceding sentences Registrable Securities of this Section 4.2(d)the Requesting Stockholders sought to be included in such registration are included.
(h) If a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, each Holder in its view, the number of shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company shall be permitted voluntarily include in such registration, in the priority listed below, up to withdraw the Maximum Offering Size:
(i) first, all or any part of its Registrable Securities from a Demand Registration at requested to be registered by any time prior Registering Stockholders (allocated, if necessary for the offering not to exceed the commencement Maximum Offering Size, pro rata among such entities on the basis of marketing the relative number of such Demand Registration, provided that Registrable Securities so requested to be included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each), and
(ii) second, subject to Section 2.01(e), any securities proposed to be registered for the account of the proviso Company.
(i) Upon notice to each Registering Stockholder, the Company may postpone effecting a registration pursuant to this Section 4.2(a2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 60 days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of such Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Company reasonably believes would not be in the best interests of the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (McLeodUSA Holdings Inc), Registration Rights Agreement (McLeodusa Inc)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Stockholders (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Demand Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Stockholders on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (STR Holdings (New) LLC), Registration Rights Agreement (STR Holdings, Inc.)
Demand Registration. All expenses (aother than underwriting discounts and commissions) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date incurred in connection with a registration requested under Section 2 (which right may be assigned as defined provided in the Merger AgreementSection 1), filings or qualifications pursuant to Section 2, including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Corporation, and the reasonable fees and disbursements of one counsel for the selling Holders selected by Holders of a majority of the Registrable Securities to be registered, shall be borne by the Corporation; provided, however, that the Corporation shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all participating Holders shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying bear such expenses pro rata based upon the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested were to be included in the registration by the Holders are included in such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); providedprovided further, however, that ifif at the time of such withdrawal, after it has become effective, the selling Holders have (i) such Registration Statement learned of a material adverse change in the condition, business, or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement prospects of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Corporation from that known to the registration, and in each case less than all selling Holders at the time of the Registrable Securities covered their request or have been advised by the effective Registration Statement are actually sold by underwriter that the selling Holder or Holders pursuant to the Registration Statement, or registration should be withdrawn (either a “Withdrawal Event”) and (ii) if, in have withdrawn the case request with reasonable promptness following the occurrence of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationWithdrawal Event, then the Company selling Holders shall continue not be required to be obligated to effect a Demand Registration pay any of such expenses and shall retain their rights pursuant to this Section 4.2 2. If the Holders are required to pay any expenses, such expenses shall be borne by the holders of the securities (including Registrable Securities included Securities) requesting such registration in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior proportion to the commencement number of marketing of such Demand Registrationsecurities for which registration was requested. If the Corporation is required to pay the expenses due to a Withdrawal Event, provided that such registration nonetheless then the Holders shall count as not forfeit their rights to a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)demand registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fluence Energy, Inc.), Registration Rights Agreement (Fluence Energy, Inc.)
Demand Registration. (ai) Subject to the provisions hereof, at Request for Registration. At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)time, the Holders of a majority Purchased Shares representing not less than 25% of the aggregate number of Registrable Securities (or any lesser amount if the request relates to all remaining Registrable Securities) (the "Demand Party") may make two written requests for registration under the Act of their Registrable Securities (a "Demand Registration"); provided, that no transferee of the Investors or of any such transferee shall have be permitted to request a registration pursuant to this Section 2(a) unless the right to require make such a request was specifically transferred by the Company Investors (or any transferee) to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written such transferee. Any such request therefor to the Company (i) specifying shall specify the number of Registrable Securities proposed to be included in such registration by such Holder or Holders, (ii) specifying whether sold and will also specify the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required method of disposition to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, Company if it is other than a firm commitment underwritten public offering (which approval shall not be unreasonably withheld or delayed and (ii) withheld). Subject to the other provisions of this Section 2(a), the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation give written notice of such Holder arising under such underwriting agreement (a) shall be limited registration request within 10 days after the receipt thereof to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or all other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf Holders. Within 15 days after receipt of such Holder expressly for inclusion therein and (b) shall not in notice by any eventHolder, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate request in any such Underwritten Offering unless such Holder agrees to sell writing that its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds (whether or not such Registrable Securities are of the Underwriters’ Maximum Number, then (isame series or class as the Registrable Securities that were the subject of the original demand) and the Company shall so advise all Holders of include in the Demand Registration the Registrable Securities of any such Holder requested to be included in so included. Each such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of request shall specify the number of Registrable Securities requested proposed to be included therein by each sold and the intended method of disposition thereof, such Holder. No shares method of Common Stock held by any Person disposition to be subject to the approval of the Company if it is other than Registrable Securities held by a firm commitment underwritten public offering (which approval shall not be unreasonably withheld). Upon a demand, the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.Company will:
(dx) A registration will not be deemed prepare and file within 30 days after a request has been made and use its reasonable best efforts to have been effected cause to become effective as promptly as reasonably commercially practicable (but in any event use its reasonable best efforts to cause to become effective within 90 days of such demand) a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% in respect of all the Registrable Securities requested to be included in the registration by the which Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequest for inclusion therein; provided, however, that if, after it has become effective, and
(iy) keep such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five for the shorter of (45A) 90 days after the commencement and (B) such period of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 time as all of the Registrable Securities included in such Registration Statement have been sold thereunder (the shorter of (A) or (B), the "Effectiveness Period"); provided, that if such demand occurs during a Black Out Period (as defined below) or other period (not to exceed 180 days) during which the Company is prohibited or restricted from issuing or selling securities pursuant to any underwriting or purchase agreement relating to an underwritten Rule 144A offering or registered public offering of securities (a "Lock Up Period"), the Company shall notify the Demand Party of the basis therefore and shall not be required to notify the Holders of such demand or file such Registration Statement prior to the end of the Black Out Period or Lock Up Period, as the case may be, in which event, the Company will use its reasonable best efforts to cause such Registration Statement to become effective no later than the later of (A) 150 days after the original demand and (B) 90 days after the end of the Black Out Period or Lock Up Period, as the case may be; and provided, further, that the Company may postpone the filing of any Registration Statement (and, in the case of a Pending Event Suspension Period only, suspend the effectiveness of any registration, suspend the use of any Prospectus and shall not be required to amend or supplement the Registration Statement, any related Prospectus or any document incorporated therein by reference (other than an effective Registration Statement being used in an underwritten offering)) (A) for a period not to exceed an aggregate of 90 days (a "Pending Event Suspension Period") in the event that (1) an event or circumstance occurs and is continuing that has not been publicly disclosed and, if not disclosed in the Registration Statement, any related Prospectus or any document incorporated therein by reference as then amended or supplemented would, in the Company's good faith reasonable judgment, result in the Registration Statement, any related Prospectus or any such document containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein, or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (2) in the good faith judgment of the Board of Directors of the Company (the "Board"), after consultation with its outside securities counsel, the Company has a bona fide business purpose for not then disclosing the existence of such event or circumstance or (B) in the event that the Company, for its own account or the account of others, has pending or is currently engaged in the process of and proposes to register shares of Common Stock for sale in an underwritten public offering on Form ▇-▇, ▇-▇ or S-3, their successor forms or any other form under the Securities Act appropriate for a public offering of such securities (other than a registration on Form S-8), for a period not to exceed 60 days after the consummation of such public offering (a "Pending Registration Suspension Period" and, together with a Pending Event Suspension Period, a "Black Out Period"); provided, further, that the Effectiveness Period shall be extended by the number of days in any Black Out Period occurring during the Effectiveness Period. In circumstances not including the events described in event of the immediately two preceding sentences occurrence of this Section 4.2(d)any Black Out Period or Lock Up Period, each Holder the Company will promptly notify the Holders of Registrable Securities thereof in writing. If the Company shall be permitted voluntarily postpone the filing of a Registration Statement, the Holders of Registrable Securities requesting registration thereof shall have the right to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior the request for registration by giving written notice to the commencement Company within 30 days after receipt of marketing notice of postponement from the Company and, in the event of such Demand Registrationwithdrawal, provided that such registration nonetheless request shall count as a Demand Registration not be counted for purposes of clause (ii) of the proviso requests permitted to be made under this Section 4.2(a2(a). The Company shall not be permitted to assert more than one Black Out Period in any consecutive 180-day period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cabletron Systems Inc), Registration Rights Agreement (Aprisma Management Technologies Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time and from time to time on or after the date that is 180 days and/or after the Closing Date Date, each Holder shall severally have the option and right, exercisable by delivering a written notice to Parent (as defined in the Merger Agreementa “Demand Notice”), the Holders of a majority of Registrable Securities shall have the right to require Parent to, pursuant to the Company terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a Registration Statement registering for the offering and sale all or part of their respective the number and type of Registrable Securities under on the Securities Act terms and conditions specified in the Demand Notice, which may include sales on a delayed or continuous basis pursuant to Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying ). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and the intended methods of disposition thereof. Notwithstanding anything to the contrary herein, in no event shall Parent be required to effectuate a Demand Registration unless the Registrable Securities of the Holders to be included therein after compliance with Section 2.1(b) have an aggregate value of at least $200 million based on the VWAP (the “Minimum Amount”) as of the date of the Demand Notice; provided, however, that the Minimum Amount shall not apply in the event that, as the result of Cut Back Shares being removed from such Registration Statement pursuant to this Section 2.1(a), the Registrable Securities of the Holders to be included therein after compliance with Section 2.1(b) have an aggregate value of less than $200 million. If at any time the Commission takes the position that some or all of the Registrable Securities proposed to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is a Registration Statement filed pursuant to an Underwritten Offering a Demand Registration must be removed from such Registration Statement (as defined below)such portion of the Registrable Securities, and (iiithe “Cut Back Shares”) containing in order for all information about of the Registrable Securities in such Holder required Registration Statement filed pursuant to a Demand Registration to be eligible to be made on a delayed or continuous basis under the provisions of Rule 415 or for the Initiating Holder to not be named as an “underwriter” in such Registration Statement, then if the Initiating Holder so elects, Parent shall remove the Cut Back Shares from such Registration Statement. Any Cut Back Shares so removed pursuant to this Section 2.1(a) shall be allocated among the Holders including Registrable Securities for resale on such Registration Statement on a pro rata basis. Further, a Demand Registration shall not constitute a Demand Registration of the Initiating Holder for purposes of Section 2.1(c) if, as a result of the cutback provisions in this Section 2.1(a) or Registrable Securities of Holders other than the Initiating Holder included in such Demand Registration pursuant to Section 2.1(b), there is included in the Demand Registration less than the lesser of (x) Registrable Securities of the Initiating Holder having a VWAP measured on the effective date of the related Registration Statement of $200 million and (y) two-thirds of the number of Registrable Securities the Initiating Holder set forth in the applicable Demand Notice.
(b) Within five Business Days (or if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the receipt of the Demand Notice, Parent shall give written notice of such Demand Notice to all Holders and, within 30 days after receipt of the Demand Notice (except if Parent is not then eligible to register for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the limitations of this Section 2.1, file a Registration Statement in accordance with applicable law. As soon as practicable after the receipt terms and conditions of such demandthe Demand Notice, the Company which Registration Statement shall (x) promptly notify cover all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a in writing request for a to be included in the Demand Registration under (such request to be given to Parent within three Business Days (or if the Registration Statement will be a Shelf Registration Statement, within one Business Day) after receipt of notice of the Demand Notice given by Parent pursuant to this Section 4.2(a) for 2.1(b)). Parent shall use reasonable best efforts to cause such Registration Statement to become and remain effective (including using reasonable best efforts to file a Registration Statement including Registrable Securities having an anticipated aggregate offering price included on any previous Registration Statement that ceases to be effective, which, for the avoidance of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval doubt shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into considered an underwriting agreement in customary form additional Demand Registration for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to Section 2.1(c)) under the Securities Act until all such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees securities registered for resale thereunder cease to sell its be Registrable Securities on (the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders“Effectiveness Period”).
(c) IfSubject to the other limitations contained in this Agreement, Parent is not obligated hereunder to effect (A) a Demand Registration within 90 days after the closing of any Underwritten Offering (or such shorter time as Parent may notify the Holders in writing) (any such time period, a “No Demand Period”), (B) more than a total of four Demand Registrations in the aggregate; provided, that notwithstanding anything to the contrary herein, in connection with an Underwritten Offeringno event shall Parent be required to effect more than two Demand Registrations within a given calendar year, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (iiC) the Company will be obligated and required a subsequent Demand Registration pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis a Demand Notice if a Registration Statement covering all of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders Initiating Holder shall have become and remains effective under the Securities Act and is sufficient to permit offers and sales of the number and type of Registrable Securities on the terms and conditions specified in the Demand Notice in accordance with the intended timing and method or methods of distribution thereof specified in the Demand Notice. No Demand Registration shall be included deemed to have occurred for purposes of this Section 2.1(c) if the Registration Statement relating thereto does not become effective or is not maintained effective for its entire Effectiveness Period, in a which case the Initiating Holder shall be entitled to an additional Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitieslieu thereof.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECHolder (and, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationif applicable, and the Company has complied in Carlyle) may withdraw all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale portion of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the its Registrable Securities included in a Demand Registration from such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effectiveness of marketing the applicable Registration Statement. Upon receipt of a notice from the Initiating Holder that the Initiating Holder is withdrawing all of its Registrable Securities from the Demand Registration or a notice from a Holder (and, if applicable, Carlyle) to the effect that the Holder (and, if applicable, Carlyle) is withdrawing an amount of its Registrable Securities such that the remaining amount of Registrable Securities to be included in the Demand Registration is below the Minimum Amount, Parent may cease all efforts to secure effectiveness of the applicable Registration Statement, unless one or more Holders other than the withdrawing Holder(s) shall promptly request Parent in writing to include additional Registrable Securities in the Demand Registration such that amount of Registrable Shares to be included in the Demand Registration satisfies the Minimum Amount (a “Requisite Holder Substitution”). In the absence of a Requisite Holder Substitution, such registration nonetheless shall be deemed a Demand Registration with respect to the Initiating Holder for purposes of Section 2.1(c) unless (A) the Initiating Holder shall have paid or reimbursed Parent for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by Parent in connection with the withdrawn registration of such Registrable Securities (based on the number of securities the Initiating Holder sought to register, as compared to the total number of securities included in such Demand Registration) or (B) the withdrawal is made following the occurrence of a Material Adverse Change or pursuant to Parent’s request for suspension pursuant to Section 3.15.
(e) Parent may include in any such Demand Registration other Parent Securities for sale for its own account or for the account of any other Person, subject to Section 2.3(c).
(f) Subject to the limitations contained in this Agreement, Parent shall effect any Demand Registration on such appropriate registration form of the Commission (A) as shall be selected by Parent and (B) subject to applicable law and the requirements of the Commission, as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition specified in the Demand Notice; provided that, subject to Section 3.15, (X) if the Registration Statement is on Form S-1, Parent shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission (provided that Form S-1 is then available for sales on a delayed or continuous basis under the provisions of Rule 415 in respect of such Demand Registration), provided that such registration nonetheless shall count as and (Y) if Parent becomes, and is at the time of its receipt of a Demand Notice eligible to use Form S-3, the Demand Registration for purposes any offering and selling of clause Registrable Securities shall be registered on Form S-3 or any equivalent or successor form under the Securities Act (iiif available to Parent) and (Z) if at the time of its receipt of a Demand Notice, Parent is a WKSI, the Demand Registration for any offering and selling of Registrable Securities shall be registered on an Automatic Shelf Registration Statement on Form S-3 or any equivalent or successor form under the Securities Act (if available to Parent). If at any time a Registration Statement on Form S-3 is effective and a Holder provides written notice to Parent that it intends to effect an offering of all or part of the proviso Registrable Securities included on such Registration Statement, Parent will amend or supplement such Registration Statement as may be necessary in order to enable such offering to take place.
(g) Without limiting Article III, in connection with any Demand Registration pursuant to and in accordance with this Section 4.2(a)2.1, Parent shall (A) promptly prepare and file or cause to be prepared and filed (1) such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to register or qualify the securities subject to such Demand Registration, including under the securities laws of such jurisdictions as the Holders shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, Parent would become subject to general service of process or to taxation or qualification to do business in such jurisdiction solely as a result of registration and (2) such forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents as may be necessary to apply for listing or to list the Registrable Securities subject to such Demand Registration on the Trading Market and (B) do any and all other acts and things that may be reasonably necessary or appropriate or reasonably requested by the Holders to enable the Holders to consummate a public sale of such Registrable Securities in accordance with the intended timing and method or methods of distribution thereof.
(h) In the event a Holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such Holder, Parent shall amend or supplement such Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Registration Statement; provided that in no event shall Parent be required to file a post-effective amendment to the Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Holder, Affiliates of the Holder or transferees of the Holder or (B) Parent has received written consent therefor from a Person for whom Registrable Securities have been registered on (but not yet sold under) such Registration Statement, other than the Holder, Affiliates of the Holder or transferees of the Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (WildHorse Resource Development Corp), Registration Rights Agreement (Chesapeake Energy Corp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file shall receive a Registration Statement registering for sale all or part of their respective Registrable Securities written request from ▇▇▇ Equity (the “Requesting Stockholder”) that the Company effect the registration under the Securities Act of all or any portion of the Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Additional Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholder and the other holders have has requested registration under this Section 5.01, and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholder that any other governmental requirements or regulationsStockholders with rights to request registration under Section 5.02 (all such Stockholders, together with the Requesting Stockholder, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 5.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two ten (210) Underwritten Offerings in Demand Registrations, (y) more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $10 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholder may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyseventy-five percent (4575%) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than fifty percent (50%) of the Registrable Securities of the Requesting Stockholder sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholder that, in its view, the number of Company Securities that the Registering Stockholder and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Stockholders’ Agreement (Papa Murphy's Holdings, Inc.), Stockholders’ Agreement (Papa Murphy's Holdings, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined The Company may include in the Merger Agreement), the Holders of a majority of Demand Registration Registrable Securities shall have for the right to require account of the Demanding Holders and shares of Common Stock for the account of the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws stockholders exercising contractual piggy-back registration rights or other stockholders, on the same terms and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of conditions as the Registrable Securities that are included therein for the Company has been so requested to registeraccount of the Demanding Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate if the managing underwriter(s) of any underwritten offering that is the Underwritten Offering, provided that subject of such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) Demand Registration have informed the Company shall (together with in writing that in their opinion the Holders proposing to distribute their total number of securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with that the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofDemanding Holders, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required stockholders intend to include in such Underwritten Offering only that offering exceeds the number of Registrable Securities requested by which can be sold in such offering within a price range acceptable to the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included therein, then (x) the number of Shares to be offered for the account of any stockholders other than the Demanding Holders shall be reduced (to zero, if necessary) pro rata in proportion to the registration respective number of Shares requested to be registered by such stockholders, and (y) thereafter, if necessary, the Holders are number of Shares to be offered for the account of the Company shall be reduced (to zero, if necessary), to the extent necessary to reduce the total number of Shares requested to be included in such registrationoffering to the number of Shares, if any, recommended by such managing underwriter(s) (and if the number of Shares to be offered for the account of stockholders other than the Demanding Holders and for the account of the Company has been reduced to zero, and the Company has complied number of Shares requested to be included in all material respects with its obligations under this Agreement with respect thereto; providedsuch offering by the Demanding Holders exceeds the number of Shares recommended by such managing underwriter(s), however, then the number of Shares to be offered for the account of the Demanding Holders shall be reduced pro rata in proportion to the respective number of Shares requested to be registered by the Demanding Holders) and (ii) if the offering that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop ordersuch Demand Registration is not underwritten, injunction or only Demanding Holders, and no other order or requirement party (including the Company), shall be permitted to include securities in such Demand Registration unless the Demanding Holders owning a majority of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities Shares included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior consent in writing to the commencement of marketing inclusion of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)securities therein.
Appears in 2 contracts
Sources: Registration Rights Agreement (Royal Ahold), Registration Rights Agreement (Peapod Inc)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after following the date that is 180 days after the Closing Date (as defined in the Merger Agreement)IPO, the Holders of Company shall receive a majority of Registrable Securities shall have written request (a “Demand Notice”) from the right to require Equity Committee that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of the Registrable Securities specified in the Demand Notice (a “Demand Registration”) by delivering a written request therefor to the Company (i) ), specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such effect, as expeditiously as reasonably practicable, subject to the restrictions in Section 2.2(d), the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Equity Committee has requested registration under this Section 2.2, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that so to be registered. Notwithstanding the Company has been so requested to register; providedforegoing, however, that (i) the Holders Equity Committee shall not make a request for a be entitled to ten Demand Registration under Registrations pursuant to this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0002.2, (ii) the Holders will not Equity Committee shall be entitled to require the Company to effect no more than three (3) Demand Registrations in the aggregate under this Agreementone demand registration during any six-month period, and (iii) the Company will shall not be obligated to effect more than one (1) make a Demand Registration with respect to the Equity Committee in any six the event that a Fifth Anniversary Registration or Piggyback Registration (6as defined below) month periodhad been available to the Equity Committee within the 180 days preceding the date of the Demand Notice.
(b) The offering At any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration, the Equity Committee may revoke such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate request by providing a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished notice to the Company by or on behalf of revoking such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementrequest. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings liable for and pay all Registration Expenses in connection with any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) IfIf a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Company and the Equity Committee that, in connection with an Underwritten Offeringits view, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed shares of Registrable Securities requested to be included in such registration exceeds the Underwriters’ largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum NumberOffering Size”), then the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered in the Demand Registration by the Equity Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Covered Persons whose Registrable Securities are included in the Demand Registration on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each);
(ii) second, any securities proposed to be registered by the Company or any securities proposed to be registered for the account of any other persons, with such priorities among them as the Company shall determine.
(d) Upon notice to the Demand Requesting Covered Person, the Company may postpone effecting a registration pursuant to this Section 2.2 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 120 days (which period may not be extended or renewed), if (i) the Company shall so advise all Holders determine in good faith that effecting the registration would materially and adversely affect an offering of Registrable Securities to be included in securities of such Underwritten Offering and company the preparation of which had then been commenced or (ii) the Company will be obligated and required to include is in possession of material non-public information the disclosure of which during the period specified in such Underwritten Offering only that number of Registrable Securities requested by notice the Holders thereof to Company believes in good faith would not be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis best interests of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 2 contracts
Sources: Registration Rights Agreement (Evercore Partners Inc.), Registration Rights Agreement (Evercore Partners Inc.)
Demand Registration. (a) Subject to The Company agrees that at the provisions hereofCompany's sole expense, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Company shall, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying no later than thirty (30) days following a written demand from the number Warrant Holder or the holder of Registrable Securities Warrant Shares for registration, file on its behalf and on behalf of the Warrant Holder or the holder of Warrant Shares with respect to be included the Warrant Shares specified in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such demand a Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act Act; and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Holders will not be entitled to require the Commission as soon thereafter as reasonably practicable. The Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not shall be obligated to effect more than prepare, file and cause to become effective only one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities Statement pursuant to such Demand this Section 11(d) (which Registration may Statement shall be in the form of an underwritten public offering (an “Underwritten Offering”addition to any filed under Section 11(c)). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be The registration required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted effected by the Company on its own behalf pursuant to Section 11(c) or on behalf of the Holders.
(cthis Section 11(d) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as even though a Demand Registration unless the Registration Statement relating with respect thereto has been declared become effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (1) if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction injunction, or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt, or if for any court prevents or otherwise limits the sale of the Registrable Securities pursuant reason not attributable to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Warrant Holder or Holders pursuant with respect to the such Registration Statement, and has not thereafter become effective or (ii2) if, if the conditions to closing specified in the case of an Underwritten Offeringunderwriting agreement, the Company fails to provide Full Cooperationif any, then entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied or waived, other than by reason of clause (ii) a failure on the part of the proviso Warrant Holder with respect to such Registration Statement; provided, that this the Warrant Holder or the holder of Warrant Shares may not be able to make a demand for registration under this Section 5(d) (A) unless and until a registration statement filed pursuant to Section 4.2(a). If 5(a) shall have expired or become ineffective or (iB) a registration requested to the extent that sales may be reasonably made pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Rule 144 under the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after Securities Act b the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Warrant Holder.
Appears in 2 contracts
Sources: License Agreement (Cytogen Corp), License Agreement (Cytogen Corp)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after following the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the of this Agreement and upon written notice from a Holder or Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act at least twenty percent (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations20%) of the Registrable Securities that the Company has been so requested (without giving effect to register; provided, however, that (iany limitation on exercise or conversion) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate manner set forth in Section 11(h) hereof requesting that Company effect the registration under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in Securities Act of any six (6) month period.
(b) The offering or all of the Registrable Securities pursuant held by such Holder as described in Section 2(b) (which notice shall specify the intended method or methods of disposition of such Registrable Securities), Company shall use its reasonable best efforts to such Demand Registration may be effect, in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as manner set forth in Section 4.9 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request; provided that:
(i) if, prior to receipt of a registration request pursuant to this Section 2(a), Company had commenced a financing plan and held or identified a date to hold a formal “all hands” meeting with outside advisors, including an underwriter if such financing plan is an underwritten offering, and, in the good faith business judgment of Company’s underwriter (or outside advisors, if no underwriter), a registration at the time and on the terms requested could materially and adversely affect or interfere with such financing plan of Company or its subsidiaries (a “Transaction Blackout”), Company shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) sixty (60) days after the termination of such offering; provided that Company shall only be permitted to delay a requested registration under this Section 2(a), whether in reliance on this subsection (i) or on subsection (ii) below, twice during the term of this Agreement.
(ii) if, while a registration request is pending pursuant to this Section 2(a), Company has determined in good faith that (A) the filing of a registration statement could jeopardize or delay any contemplated material transaction other than a financing plan involving Company or would require the disclosure of material information that Company had a bona fide business purpose for preserving as confidential; providedor (B) Company then is unable to comply with SEC requirements applicable to the requested registration (notwithstanding its reasonable best efforts to so comply), Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such contemplated transaction is completed or abandoned or such material information is otherwise disclosed to the public or ceases to be material or Company reasonably is able to so comply with applicable SEC requirements, as the case may be, and (B) thirty (30) days after Company makes such good-faith determination; provided that Company shall only be permitted to delay a requested registration under this Section 2(a), whether in reliance on this subsection (ii) or on subsection (i) above, twice during the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit term of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and this Agreement.
(iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) file more than two (2) Underwritten Offerings registration statements under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in event if such a registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that request is for a number of Registrable Securities requested by the Holders thereof to which have an aggregate market value less than $1 million. If such a request shall be included in such registration that does not exceed such Underwriters’ Maximum Numberfor an underwritten offering, such Registrable Securities to a request must be allocated pro rata among the Holders thereof on the basis of the for a number of Registrable Securities requested to be included therein by each such Holder. No shares which have an aggregate market value of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiesat least $5 million.
(db) A Notwithstanding any other provision of this Agreement to the contrary, a registration will requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the SECrequesting Holder based upon material adverse information relating to Company that is (x) different from the information known to the Holder or Holders requesting registration at the time of their request for registration, or (y) promptly disclosed by Company to the Holder at least 75% the time of their request for registration; (B) if, when effective, it includes fewer than ninety (90%) percent of the number of shares of Registrable Securities requested to be included in which were the registration by subject matter of the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequest; provided, however, that if, (C) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, less than ninety (90%) percent of the Registrable Securities requested to be registered can be completely distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Company shall have the right to designate the underwriter or underwriters, including the lead managing underwriter of such underwritten offering, subject to the reasonable approval of the Holders.
(d) Holders other than the Holder initiating the demand pursuant to Section 2(a) and holders of other registrable securities with the right to participate in a Company registration statement shall have the right to include their shares of Registrable Securities or other registrable securities, as the case may be, in any registration pursuant to Section 2(a). In connection with those registrations in which multiple Holders or holders of other registrable securities with the right to participate in such registration (“Piggy-back Rights Holders”) participate, in the event the facilitating broker/dealer or, in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the number of shares to be sold, the number of shares to be included in the sale or underwriting and registration shall be allocated pro rata among the Holders and the holders seeking registration pursuant to piggy-back registration rights otherwise granted by Company on the basis of the estimated proceeds from the sale of the securities covered by such registration.
(e) Company shall have the right to cause the registration of additional securities for sale for the account of Company in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a) which involves an underwritten offering; provided that Company shall not have the right to cause the registration of such additional securities if any court prevents or otherwise limits such Holder is advised in writing (with a copy to Company) by the lead managing underwriter designated pursuant to Section 2(c) that, in such firm’s good faith opinion, registration of such securities in addition to those securities included pursuant to Sections 2(a)-(d) hereof would materially adversely affect the offering and sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered contemplated by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (RS Properties I LLC), Registration Rights Agreement (Sands Brothers Venture Capital Ii LLLC)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause such registration statement to become effective (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a "Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until fortybe unreasonably withheld. In the event there is one or more co-five (45) days after managers, the commencement first such co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the distribution Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Holders Requesting Shareholder.
(e) In connection with a Demand Registration, both the Shareholder not requesting the Demand Registration (the "Non-Requesting Shareholder") and Vail may elect to include additional shares of Vail Securities in such offering on the Registrable same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, however, that if the managing underwriter(s) advises the Requesting Shareholder, the Non-Requesting Shareholder and Vail that, in its judgment, the number of shares proposed to be included in such offering exceeds the largest number of Vail Securities covered by which can be sold without having an adverse effect on such registrationoffering, including the price at which such securities can be sold (the "Marketable Number"), then the Company shall continue total number of shares to be obligated included in such offering shall be limited as follows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the Non-Requesting Shareholder propose to effect a Demand Registration pursuant sell up to this Section 4.2 the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the Registrable relative number of Vail Securities that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause and (ii) second, all the shares of Vail Securities that Vail proposes to sell, which does not exceed the proviso difference, if any, between the Marketable Number and that number of shares which the Requesting Shareholder and the Non-Requesting Shareholder have included pursuant to Section 4.2(a)clauses (i) and (ii) above.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc), Shareholder Agreement (Vail Resorts Inc)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after Company shall receive a written request from the date that is 180 days after the Closing Date DLJMB Members (as defined in the Merger Agreement)such requesting person, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholder’s Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least fifteen (15) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 1.01, and
(ii) subject to the restrictions set forth in Sections 1.01(e) and 1.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Stockholders that any other governmental requirements or regulationsStockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within ten (10) Business Days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 1.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least (A) $50 million if such Demand Registration would constitute the Initial Public Offering, or (B) $20 million in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten (10) Business Day period referred to in Section 1.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Stockholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, provided that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of Company Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Members on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each); and
(ii) of second, all Registrable Securities proposed to be registered by the proviso to Section 4.2(a)Company.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings LLC)
Demand Registration. (a) Subject to the provisions hereofconditions of this Section 2.1, at any time on or after the date if FS receives a written request from JL that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to FS file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act covering the registration of all or a part of its Registrable Securities, then FS shall use its commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that it has requested to be registered (a “Demand Registration”) by delivering a written such request therefor to the Company (i) specifying include the number of Registrable Securities sought to be included in such registration by such Holder or Holders, (ii) specifying whether and the intended method or methods of disposition thereof is pursuant to an Underwritten Offering (as defined belowdistribution of such Registrable Securities), subject to and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandterms, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received conditions, procedures, and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations limitations contained in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration . JL may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effective date of marketing the registration statement relating to a requested registration under this Section 2.1 revoke its request by providing written notice to FS, in which case the Registration Expenses will be borne in accordance with Section 2.4.
(b) FS shall not be required to effect a registration pursuant to this Section 2.1:
(i) after FS has effected one registration pursuant to this Section 2.1, provided, however, that a registration shall not count as having been effected unless and until it has become effective, and unless and until JL shall have had the opportunity to register and sell 100% of such Demand Registrationits Registrable Securities initially requested to be registered pursuant thereto, provided except that such a registration nonetheless the request for which has been revoked by JL shall count as a Demand Registration having been effected unless the revocation is based upon material adverse information concerning the business or financial condition of FS of which JL was not aware at the time of its request for purposes of clause registration;
(ii) during the period starting with the date of filing of, and ending on the proviso date 90 days following the effective date of, a registration statement pertaining to any underwritten public offering in which JL was given the opportunity to participate pursuant to Section 4.2(a)2.2; provided that FS uses commercially reasonable efforts to cause such registration statement to become effective; or
(iii) during any period when FS is not eligible to use Form S-3 to register the Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (National Patent Development Corp), Registration Rights Agreement (Five Star Products Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after six (6) month anniversary of the Closing Date (as defined in the Merger Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a4.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Public Offering”). In such case, (i) the Company Holders of a majority of the shares of Registrable Stock to be sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed Offering and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 5.8 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the of Company on its own behalf or on behalf of the Holderssecurities.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum NumberNumber prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities to shall be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a). If (i) a registration requested pursuant to this Section 4.2 4.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 4.1 does not remain continuously effective until the earlier of forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationregistration or the completion of such distribution, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 4.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d4.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a).
Appears in 2 contracts
Sources: Stockholders Agreement (AV Homes, Inc.), Securities Purchase Agreement (AV Homes, Inc.)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after following the second anniversary of the date that is 180 days after of this Agreement, the Closing Date Company shall receive either—
(as defined i) in the Merger Agreementevent there has not been the First Public Offering, a request from at least two (2) Initial Standby Purchasers that are not Affiliates of each other (but regarding affiliated Initial Standby Purchasers as a single Initial Standby Purchaser for these purposes) that hold in the aggregate fifteen percent (15%) or more of the then outstanding Common Stock, with at least two (2) of such Initial Standby Purchasers holding, individually, at least five percent (5%) or more of the then outstanding Common Stock, or
(ii) in the event there has been the First Public Offering,
(1) a request from one or more Initial Standby Purchasers holding in the aggregate six percent (6%) or more of the then outstanding Common Stock or
(2) a request from one or more Standby Purchasers holding in the aggregate ten percent (10%) or more of the then outstanding Common Stock (any Standby Purchaser or Purchasers making the request pursuant to clause (i) or (ii), the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholder”) that, in each case, the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof (which may include a Shelf Registration provided that the Company is eligible to use Rule 415 for the purposes thereof), then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least five (5) Business Days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or HoldersDemand Registration to the other Standby Purchasers and thereupon shall use its commercially reasonable efforts to effect, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon expeditiously as practicable after the receipt of such demandpossible, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 2.01, and
(ii) subject to the restrictions set forth in Sections 2.01(h) and Section 2.09, all other Registrable Securities that any other governmental requirements or regulationsStandby Purchaser (all such other Standby Purchasers, together with the Requesting Standby Purchasers, the “Registering Stockholders”) have requested the Company to register by request received by the Company within the relevant Registration Request Period, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered, provided that if such registration involves an underwritten Public Offering, all such Standby Purchasers requesting to be included in the registration must sell their Registrable Securities to the underwriters selected as provided in Section 2.04(f) on the same terms and conditions as apply to the Requesting Stockholders.
(b) Subject to 2.01(e), the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) five Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten OfferingRegistrations, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate market price or fair value on the SEC, at least 75% date of such request of the Registrable Securities requested to be included in such Demand Registration equals or exceeds $40,000,000. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six-month period.
(c) The Company will from time to time as appropriate notify all Registering Stockholders of the identities of the other Registering Stockholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration by the Holders are included in statement relating to such registration, and the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedrevoking such request. A request, howeverso revoked, that if, after it has become effective, shall be considered to be a Demand Registration unless (i) such revocation arose out of the fault of the Company (in which case the Company shall be obligated to pay all Registration Statement Expenses in connection with such revoked request), or (ii) the related offerRequesting Stockholders reimburse the Company for all Registration Expenses of such revoked request.
(d) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Registration is effected, except as set forth in Section 2.01(c).
(e) Unless otherwise agreed with the Requesting Stockholders, any registration of the Company’s Common Stock pursuant to this Section 2.01 shall be effected solely for the purpose of registering the offer and sale of the Common Stock held by the Registering Stockholders and shall not be effected for any offer or distribution sale by the Company of securities by the Company.
(f) If requested by one or more Standby Purchasers holding in the aggregate fifteen (15%) or more of the then outstanding Common Stock, the Company shall use its reasonable best efforts to have the Common Stock listed on a national securities exchange (including The Nasdaq Stock Market LLC) or quoted on the bulletin board of the NASD, so long as the Company is at the time subject to the reporting requirements under the Exchange Act, whether or not as a result of a Demand Registration, and otherwise qualifies for such listing or quotation.
(g) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days, or in the case of a Shelf Registration, two years (or such shorter period in which all Registrable Securities thereunder of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 50% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.01(h) such that less than 50% of the Registrable Securities of the Requesting Stockholders sought to be included in such registration are included.
(h) If a Demand Registration involves an underwritten Public Offering (including any Shelf Registration used to effect a Public Offering) and the events described managing underwriter advises the Company and the Requesting Stockholders that, in its view, the immediately two preceding sentences number of this Section 4.2(d), each Holder shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall be permitted voluntarily include in such registration, in the priority listed below, up to withdraw the Maximum Offering Size:
(i) first, all or any part of its Registrable Securities from a Demand Registration at requested to be registered by any time prior Registering Stockholders (allocated, if necessary for the offering not to exceed the commencement Maximum Offering Size, pro rata among such entities on the basis of marketing the relative number of such Demand Registration, provided that Registrable Securities so requested to be included in such registration nonetheless shall count as a Demand Registration for purposes of clause by each), and
(ii) second, subject to Section 2.01(e), any securities proposed to be registered for the account of the proviso Company.
(i) Upon notice to each Registering Stockholder, the Company may postpone effecting a registration pursuant to this Section 4.2(a2.01 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding thirty (30) days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and the Requesting Stockholders in writing that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which would be required by the registration during the period specified in such notice the Company reasonably believes would not be in the best interests of the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Safety-Kleen, Inc), Registration Rights Agreement (Safety-Kleen, Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after six month anniversary of the Closing Date consummation by the Company of the IPO, if the Company shall receive a written request from a Sponsor or Sponsors holding outstanding Registrable Securities (as defined in the Merger Agreement)such requesting Persons, the Holders of a majority of Registrable Securities shall have the right to require “Requesting Stockholders”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of all or any portion of such Requesting Stockholders’ Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) by delivering a written request therefor at least ten (10) days prior to the Company (i) specifying anticipated filing date of the number of Registrable Securities registration statement relating to be included in such registration by such Holder or Holders, (ii) specifying whether Demand Registration to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), other Stockholders and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company thereupon shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and of:
(i) all Registrable Securities for which the Requesting Stockholders have requested registration under this Section 7.01, and
(ii) subject to the restrictions set forth in Section 7.01(d), all other Registrable Securities that any other governmental requirements or regulationsStockholders (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company to register by request received by the Company within seven (7) days after such Stockholders receive the Company’s notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that no Person may participate in any registration statement pursuant to this Section 7.01(a) unless such Person agrees to sell their Registrable Securities to the Company has been so requested underwriters selected as provided in Section 7.05(f) on the same terms and conditions as apply to registerthe Requesting Stockholders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to no such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder Registering Stockholders shall be required to make any representations and warranties toor warranties, or agreements withprovide any indemnity, in connection with any underwriter in a such registration other than customary representationsrepresentations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, warranties her or its Registrable Securities to be transferred free and agreements clear of all liens, claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Registering Stockholder as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each Holder such Person will be in respect of any indemnificationproportion thereto; and provided, contribution or other obligation of further, that such Holder arising under such underwriting agreement (a) shall liability will be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementto, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to received by such Holder (after deduction of all underwriters’ discounts and commissions) Person from the disposition sale of the his, her or its Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on registration; provided that, the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included in the registration by the Holders are included all Registering Stockholders in such registrationDemand Registration are at least $25,000,000.
(b) Promptly after the expiration of the seven-day period referred to in Section 7.01(a)(ii) hereof, the Company will notify all Registering Stockholders of the identities of the other Registering Stockholders and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution number of shares of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationtherein. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at At any time prior to the commencement effective date of marketing the registration statement relating to such registration, a majority of the Requesting Stockholders may revoke such request without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected; provided that such registration nonetheless holders of Registrable Securities shall count pay all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Stockholder, except for the fees and disbursements of the Stockholders borne and paid by the Company as a Registration Expense.
(d) If a Demand Registration for purposes involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders that, in its view, the number of clause Registrable Securities that the Registering Stockholders and the Company propose to include in such registration exceeds the largest number of Registrable Securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold (ii) of the proviso “Demand Maximum Offering Size”), the Company shall include in such registration, in the priority listed below, up to Section 4.2(a).the Demand Maximum Offering Size:
Appears in 2 contracts
Sources: Stockholders Agreement (INC Research Holdings, Inc.), Stockholders Agreement (INC Research Holdings, Inc.)
Demand Registration. (a) Subject One or more Requesting Shareholders shall be entitled to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, in the aggregate taking into account all of the Requesting Shareholders, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued as promptly as practicable under the Securities Act of:
(i) the offer and any other governmental requirements or regulations) sale of the Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 2.1(b); and
(iii) all equity securities of the Company will not which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 2.1; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such Each Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, if then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Within five (5) business days after receipt of a Demand, the Company shall give written notice of such Demand to all other Shareholders, if any. Subject to Section 2.1(h), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held with respect to which the Company has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been mailed. Such written request shall comply with the Holders requirements of a Demand as set forth in this Section 2.1(b).
(c) Demand Registrations shall be included in on (i) if option (ii) and (iii) below are not available, Form S-1 or any similar long-form registration (“Long-Form Registration”), (ii) if option (iii) below is not available, Form S-3 or any similar short form registration, if such short form registration is then available to the Company, or (iii) Form S-3ASR if the Company is, at the time a Demand is made, a Well-Known Seasoned Issuer (a Demand Registration without under each of clauses (ii) and (iii), a “Short-Form Registration”), in each case, in compliance with the prior written consent Securities Act and in the form of registration statements that the holders Company has customarily prepared and filed with the SEC for issuances of a majority in interest of the Registrable Securitiesits Shares. The Company shall not be required to effect more than two Long-Form Registrations per fiscal year.
(d) Effective Demand Registration. A registration will Demand Registration shall not be deemed to have been effected as effected:
(i) unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared effective by the SEC, at least 75% SEC and remains effective in compliance with the provisions of the Securities Act and the laws of any U.S. state or other jurisdiction applicable to the disposition of Registrable Securities requested covered by such registration statement until such time as all of such Registrable Securities shall have been disposed of in accordance with such registration statement or there shall cease to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that any Registrable Securities;
(ii) if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Entities or court for any reason other governmental or administrative agency, or if than a violation of applicable law solely by any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, Selling Shareholder and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or has not thereafter become effective;
(iiiii) if, in the case of an Underwritten Offering, the conditions to closing specified in an underwriting agreement applicable to the Company fails are not satisfied or waived other than by reason of any breach or failure by any Selling Shareholder; or
(iv) if the Company effects a postponement, declares a Suspension Period or similarly delays the exercise of rights under this Agreement pursuant to provide Full Cooperationthe terms in the paragraph below or the terms of this Agreement generally. Notwithstanding the foregoing, then such registration will the Company shall not be deemed not obligated to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) maintain the effectiveness of a registration requested Long-Form Registration, filed pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration Registration, for a period longer than 75 days or (ii) effect any Demand Registration (A) within six (6) months of the effective date of a registration requested statement with respect to a “firm commitment” Underwritten Offering in which all Piggyback Sellers were given “piggyback” rights pursuant to this Section 4.2 does 2.2 (and at least 50% of the number of Registrable Securities requested by such Piggyback Sellers to be included in such Demand Registration were included), (B) within three (3) months of the effective date of a registration statement with respect to any other Demand Registration, (C) within 90 days from the date on which a Marketed Underwritten Offering was priced or (D) if, in the reasonable judgment of the Board, it is not remain continuously effective until fortyfeasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or financial information, provided that the Company shall use commercially reasonable efforts to obtain such financial statements or financial information as promptly as practicable. In addition, the Company shall be entitled to postpone (upon written notice to all Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice in any period of twelve (12) consecutive months and in no event for more than an aggregate of one-hundred twenty (120) days in any three-hundred sixty-five (45365) days after consecutive day period) if the commencement Board determines in its reasonable judgment that the filing or effectiveness of the distribution by registration statement relating to such Demand Registration would cause the Holders disclosure of the Registrable Securities covered by such registrationmaterial, then non-public information that the Company shall continue to be obligated to effect has a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)bona fide business purpose for preserving as confidential, each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationprovided, provided however, that such registration nonetheless postponement shall count terminate at such time that such information is no longer material, non-public information or the Company no longer has a bona fide business purpose for preserving such information as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)confidential.
Appears in 2 contracts
Sources: Registration Rights Agreement (Apollo Management Holdings GP, LLC), Transaction Agreement (Apollo Global Management, Inc.)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company shall be requested in writing by Holder to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any of the Registration Stock, the Company, subject to the Company (i) specifying the number of Registrable Securities to be included limitations set forth in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowsubsection 3(b), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As shall effect as soon as practicable after the receipt of such demandrequest, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been all Registration Stock which Holder so requested requests to register; provided, however, that be registered.
(i) If Holder intends to distribute the Holders Registration Stock covered by its request by means of an underwriting, it shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require so advise the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering as a part of the Registrable Securities its request made pursuant to such Demand Registration may this subsection 3(a). The managing underwriter will be in selected by Holder and shall be reasonably acceptable to the form of an underwritten public offering (an “Underwritten Offering”)Company. In such caseevent, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company Holder shall (together with the Holders proposing to distribute their securities through such underwritingCompany as provided in subsection 4(e)) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(sunderwriter or underwriters selected for such underwriting.
(ii) proposing to distribute their securities through such Underwritten OfferingNotwithstanding the foregoing, which underwriting agreement shall have indemnification provisions the Company may include in substantially a registration requested under this subsection 3(a) any additional authorized shares of the form as set forth in Section 4.9 of this AgreementCommon Stock, whether or not issued, for sale by the Company or for sale by others; provided, however, that such shares shall not be included to the extent that the managing underwriter chosen in accordance with subsection (i) above concludes in good faith that the representations and warranties byinclusion of such shares will interfere with the successful marketing of the shares of Registration Stock to be included therein.
(iii) Notwithstanding the foregoing, if the Company shall furnish to Holder a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be detrimental for such registration statement to be filed or would require the Company to make public disclosure of information the premature disclosure of which would have an adverse effect on the Company, and it is therefore beneficial to the other agreements on Company to defer the part offiling of such registration statement (or the intended sale of Registration Stock pursuant to a then effective registration statement), the Company shall have the right to and for the benefit of the underwriter(s) shall also be made defer taking action with respect to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties tosuch filing, or agreements withrequire Holder to refrain from selling Registration Stock, any underwriter in as the case may be, for a registration other period of not more than customary representations, warranties and agreements and one hundred twenty (iii120) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and days.
(b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect effect, or participate to take any action to effect, any registration pursuant to this Section 3:
(ai) more than two (2) Underwritten Offerings After the Company has effected one registration pursuant to this Section 3 in any the previous twelve (12) month period, months and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and has been declared or ordered effective; or
(ii) During the Company will be obligated and required period beginning on a date thirty (30) days prior to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis Company's good faith estimate of the number date of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationfiling of, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, ending on a date one hundred eighty (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45180) days after the commencement effective date of, a registration of Common Stock or other securities of the distribution by Company under the Holders Act in connection with a public offering of such securities (other than a registration relating solely to the sale of securities to participants in a stock option or other employee benefits plan of the Registrable Securities covered by such registration, then Company); provided that the Company shall continue is actively employing in good faith reasonable efforts to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that cause such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso statement to Section 4.2(a)become effective.
Appears in 2 contracts
Sources: Registration Rights Agreement (Securicor Telesciences Inc), Registration Rights Agreement (Axiom Inc)
Demand Registration. (a) Subject to the provisions hereof, The Company hereby agrees that at any time on or after the date that is 180 days after one year from the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require Purchaser may request that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of 1933, as amended (the "Securities Act") of all or part of their respective Registrable Securities the Purchased Securities, and thereupon will, as expeditiously as possible, use its best efforts to effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Purchased Securities that which the Company has been so requested to registerregister by the Purchaser, all to the extent requisite to permit the disposition of the Purchased Securities so to be registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (afile any such registration statement under this Section 9(a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by unless the underwriter(s) in any prior underwritten anticipated aggregate gross offering conducted by the Company on its own behalf or on behalf of the Holdersprice is at least $2,000,000.
(ci) If, The Company shall pay all of the expenses in connection with an Underwritten Offeringthe registration statement filed pursuant to this Section 3(a), except for underwriting discounts and commissions and transfer taxes, including, but not limited to the managing underwriter(s) advise reasonable attorneys fees of one counsel selected by the Company that in its or their reasonable opinion the number of securities proposed to be included in such Purchaser, which shall not exceed $1,000 per effective registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and statement.
(ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration requested pursuant to this Section 9(a) will not be deemed to have been effected as unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretobecome effective; provided, however, that if, within 180 days after it has become effective, (i) the offering of the Purchased Securities pursuant to such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Securities and Exchange Commission (the "SEC") or any other governmental agency or administrative agencycourt, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause effected.
(iiiii) of the proviso to Section 4.2(a). If (i) a requested registration requested pursuant to this Section 4.2 is deemed not 9(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of securities requested to be included in such registration exceeds the number which can be reasonably sold in such offering, the Company will include in such registration first, securities offered by the Company, second, the Purchased Securities which have been effected as a Demand Registration or (ii) the registration requested to be registered pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement 9(a), third, an amount of securities of the distribution by Company which the Holders Company is including in such registration statement pursuant to any incidental ("piggyback") registration rights, and fourth, the amount of other securities ("Other Securities") of the Registrable Securities covered Company held by all other security holders which, in the good faith opinion of such registrationmanaging underwriter, then can be sold without causing a material adverse effect on the offering.
(iv) The Company shall continue to be obligated to effect a Demand Registration register Purchased Securities pursuant to this Section 4.2 9(a) only once provided that if the number of Purchased Securities requested by the Purchaser to be included in a Registration Statement requested by the Purchaser pursuant to Section 9 (a) is cut back, the Purchaser shall have the right, no earlier than one year following effectiveness of the Registrable first demand registration, to request a second Registration Statement to register the Purchased Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)so registered.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nam Corp), Stock Purchase Agreement (Insurance Services Office Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after expiration of the Closing Date (as defined transfer restrictions contained in the Merger AgreementSection 2.1(a), so long as the Holders Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Shareholder (a majority "Requesting Shareholder") shall be entitled to make a written request of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering "Demand") for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Shareholder's Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying based on the number of Registrable Securities to be included in outstanding on the date such registration by such Holder or Holders, Demand is made) (iia "Demand Registration") specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, thereupon the Company shall (x) promptly notify all Holders from whom will, subject to the request for registration has not been received and (y) terms of this Agreement, use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities that the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 5.1(b); and
(iii) all Common Shares that the Company will not may elect to register in connection with any offering of Registrable Securities pursuant to this Section 5.1, but subject to Section 5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Subject to Section 5.1(g), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held by with respect to which the Holders Company has received a written request for inclusion therein within ten (10) days after the initial Demand.
(c) The Shareholders, collectively, shall be included in a entitled to an aggregate of six (6) Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistrations.
(d) A registration will Demand Registration shall not be deemed to have been effected and shall not count as a Demand Registration (i) unless the Registration Statement relating a registration statement with respect thereto has been declared become effective by the SEC, and has remained effective for a period of at least 75% of the sixty (60) days (or such shorter period in which all Registrable Securities requested to be included in the registration by the Holders are included in such registrationDemand Registration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (ii) if, after it has become effective, (i) such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of to any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, (iii) if the conditions to closing specified in the purchase agreement or if underwriting agreement entered into in connection with such Demand Registration are not satisfied as a consequence of any court prevents act or otherwise limits omission by the sale Company or (iv) the number of Registrable Securities requested for inclusion is materially reduced pursuant to Section 5.1(g).
(e) Demand Registrations shall be on such appropriate registration form of the Commission as shall be selected by the Company.
(f) The Company shall be entitled to postpone (upon written notice to all Shareholders) for up to an aggregate of ninety (90) days during any period of twelve (12) consecutive months the filing or the effectiveness of a registration statement for any Demand Registration if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities pursuant held by the Requesting Shareholder(s) shall have the right to the registration, and withdraw such Demand in each case less accordance with Section 5.3.
(g) The Company shall not include any securities other than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) Registration, except with the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement written consent of the distribution by the Holders of the Registrable Securities covered by Shareholders participating in such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 that hold a majority of the Registrable Securities included in such registrationDemand Registration. In circumstances If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Company) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the events described Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter can be sold without such adverse effect as follows and in the immediately two preceding sentences following order of this Section 4.2(d)priority: (i) first, each Holder up to the number of Registrable Securities shall requested to be permitted voluntarily included in such Demand Registration by the Shareholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Shareholders requesting such Demand Registration on the basis of the number of such securities requested to withdraw be included by such Shareholders and such Shareholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or any part of its Registrable Securities from such other method determined by the Company.
(h) Any time that a Demand Registration at any time prior involves an Underwritten Offering, the Company shall select the investment banker or investment bankers and managers that will serve as lead and co-managing underwriters with respect to the commencement of marketing offering of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Registrable Securities.
Appears in 2 contracts
Sources: Shareholder Agreement (Aircastle LTD), Shareholder Agreement (Aircastle LTD)
Demand Registration. (a) Subject After the consummation of an IPO or at such time prior to the provisions hereofconsummation of an IPO as is permitted by Section 10.3 with respect to a given Shareholder, at any time on or after upon a Shareholder's written request specifying the date that is 180 days after intended manner of disposition (including the Closing Date number of shares of Vail Equity to be sold) (as defined in the Merger Agreementa "Demand Notice"), Vail will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for sale all or part which Vail then qualifies (but not including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act), which legal counsel for Vail deems appropriate and which is available for the sale of Vail Equity to permit an underwritten public offering of some or all of the Company (i) specifying the number shares of Registrable Securities to be included in such registration Vail Equity then held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), Shareholder and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause such registration statement to become effective (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a "Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodRegistration").
(b) The offering of the Registrable Securities pursuant to such A Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as occurred until it has become effective under the Securities Act (unless a Shareholder delivers a Demand Notice and subsequently withdraws the Demand Notice, in which case such Demand Registration will be deemed to have occurred unless the Registration Statement relating thereto has been declared effective such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoVail); provided, however, that if, after it a Demand Registration has become effective, (i) the offering of Vail Equity pursuant to such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of prohibited by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencya court, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective such Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause occurred (ii) unless such prohibition on the sale of the proviso Vail Equity is based on actions or omissions of such Shareholder, in which case such Demand Registration will be deemed to have occurred unless such Shareholder agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by Vail).
(c) Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 4.2(a). If 5.1; provided, however, that Vail will not be required to register the Vail Equity pursuant to a Demand Notice under this Section 5.1 if at such time (i) the shares of Vail Equity which a registration requested Shareholder is requesting to be registered pursuant to this Section 4.2 is deemed not 5.1 constitute less than 6.0% (or, if less, all of the shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to have been effected as a Demand Registration be registered or (ii) such Demand Notice is given within six (6) months after the effective date of any other registration requested of any Vail Securities under the Securities Act.
(d) The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 4.2 does 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be subject to the approval of Vail, which approval shall not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationunreasonably withheld. In circumstances not including the events described in event there is one or more co-managers, the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities first such co-manager shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationselected by Vail, provided that such registration nonetheless co-manager shall count as a Demand Registration for purposes of clause (ii) be subject to the approval of the proviso to Section 4.2(a)Requesting Shareholder, which approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Requesting Shareholder.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc /Mo), Shareholder Agreement (Ralcorp Holdings Inc /Mo)
Demand Registration. (ai) Subject to If the provisions hereof, Company shall receive at any time on or after the date end of the Effectiveness Period for the Shelf Registration, a written request from the Investors of at least thirty-three percent (33%) of the Demand Securities then outstanding that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (a “covering the registration of the Demand Registration”) by delivering a written request therefor Securities pursuant to this Section 2(b), then the Company shall, within ten (i10) specifying business days of the number receipt of Registrable such written request, give written notice of such request ("Request Notice") to all Investors, and file within thirty (30) days and use its best efforts to cause such Registration Statement to become effective within an additional thirty (30) days, the Registration Statement covering all Demand Securities which Investors request to be registered and included in such registration by written notice given such Holder or HoldersInvestors to the Company within twenty (20) days after receipt of the Request Notice; provided that the Registrable Securities requested by all Investors to be registered pursuant to such request must be at least thirty-three percent (33%) of all Demand Securities then outstanding; provided further, that in the event the proposed offering described in the Request Notice is an Underwritten Offering, then additional Holdover Securities (other than Warrants and Series A Preferred) held by Investors may be included in the registration described in the Request Notice, subject to compliance with subsection (ii) specifying whether below.
(ii) If the intended method Investors initiating the registration request under this Section 2(b) ("Initiating Investors") intend to distribute the Demand Securities covered by their request by means of disposition thereof is an Underwritten Offering, then they shall so advise the Company as a part of their request made pursuant to an Underwritten Offering (as defined below), this Section 2(b) and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom include such information in the request for registration has not been received and (y) use reasonable best efforts Request Notice referred to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that in subsection (i) the Holders shall not make a request for a Demand Registration under of this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”2(b). In such caseevent, (i) the Company may designate right of any Investor to include his Demand Securities and, if applicable, Holdover Securities in such registration shall be conditioned upon such Investor's participation in such Underwritten Offering and the managing underwriter(s) inclusion of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate Investor's Demand Securities in the Underwritten Offering, subject Offering (unless otherwise mutually agreed by a majority in interest of the Initiating Investors and such Investor) to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders extent provided herein. All Investors proposing to distribute their securities through such underwriting) Underwritten Offering shall enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through underwriter or underwriters selected for such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially Offering by the form as set forth in Section 4.9 Company. Notwithstanding any other provision of this Agreement; providedSection 2(b), that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of if the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iiiadvise(s) the liability Company in writing that marketing factors require a limitation of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, underwritten then (i) the Company shall so advise all Holders of Registrable Investors owning Demand Securities to and, if applicable, Holdover Securities, which would otherwise be included in such Underwritten Offering registered and (ii) the Company will be obligated underwritten pursuant hereto, and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Demand Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable and, if applicable, Holdover Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to that may be included in the registration Underwritten Offering shall be reduced as required by the Holders are included in such registrationunderwriter(s) and allocated among the Investors owning Demand Securities and, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; providedif applicable, howeverHoldover Securities, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant on a pro rata basis according to the registrationnumber of Demand Securities and, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statementif applicable, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full CooperationHoldover Securities, then such outstanding held by each Investor requesting registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aInitiating Investors).
Appears in 2 contracts
Sources: Registration Rights Agreement (Avnet Inc), Registration Rights Agreement (Sci Systems Inc)
Demand Registration. (a) Subject to the provisions hereof, at any Any time on or after the date that is earlier of (i) December 31, 2018 and (ii) 180 days after the Closing Date (as defined in the Merger Agreement)a Qualified IPO, the Holders of a majority of Registrable Securities shall have the right to require an Investor Majority may notify the Company in writing that they intend to file a Registration Statement registering offer or cause to be offered for public sale all or part any portion of their respective Registrable Securities under in the Securities Act (a “Demand Registration”) by delivering a written request therefor to manner specified in such request. Upon receipt of such request, the Company (i) specifying the number shall promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable its best efforts to effect expeditiously file a Form S-1 covering all Registrable Securities whose holders request participation in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) pay for registration pursuant to a request under this Section 2 more than two (2) Underwritten Offerings times. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) unless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating shareholders; provided, however, that the holders that participate in such registration pursuant to this Section 2(a) and hold at least sixty percent (1260%) month periodof Registrable Securities (the “Withdrawing Holders”) may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and the Withdrawing Holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, however, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) Registrable Securities of holders who did not make the original request for registration and (v) Registrable Securities of holders who requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities pursuant to be allocated pro rata among the Holders thereof on the basis Section 2(a). If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iv) or (v), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority two-thirds (2/3) in interest of the Registrable Securities.
Securities to be sold in such offering (d) A registration which approval will not be deemed unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to have been effected as implement an employee benefit plan or a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% transaction to which Rule 145 of the Registrable Securities requested Act is applicable) to be included in become effective within one hundred twenty (120) days following the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dicerna Pharmaceuticals Inc), Registration Rights Agreement (Dicerna Pharmaceuticals Inc)
Demand Registration. (a) Subject to the provisions hereof, If at any time on or after the date Partnership shall receive a written request (a “Demand Notice”) from the Demand Committee that is 180 days after the Closing Date (as defined in Partnership effect the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act of all or any portion of the Registrable Securities specified in the Demand Notice (a “Demand Registration”) by delivering a written request therefor ), specifying the information set forth under Section 2.5(j), then the Partnership shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the Company (i) specifying the number of Registrable Securities to be included restrictions in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowSection 2.2(d), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof the Registrable Securities for which the Demand Committee has requested registration under this Section 2.2, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering At any time prior to the effective date of the Registrable Securities pursuant registration statement relating to such registration, the Demand Committee may revoke such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate request by providing a co-managing underwriter to participate in the Underwritten Offering, subject notice to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through Partnership revoking such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder request. The Partnership shall be required to make liable for and pay all Registration Expenses in connection with any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) IfIf a Demand Registration involves an underwritten Public Offering and the managing underwriter advises the Partnership and the Demand Committee that, in connection with an Underwritten Offeringits view, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed units of Registrable Securities requested to be included in such registration exceeds the Underwriters’ largest number of units that can be sold without having a material adverse effect on such offering, including the price at which such units can be sold (the “Maximum NumberOffering Size”), then the Partnership shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) the Company shall so advise first, all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held registered in the Demand Registration by the Holders Demand Committee (allocated, if necessary for the offering not to exceed the Maximum Offering Size, in such proportions as shall be included in a determined by the Demand Registration without Committee);
(ii) second, any securities proposed to be registered by the prior written consent Partnership or any securities proposed to be registered for the account of any other persons, with such priorities among them as the holders of a majority in interest of the Registrable SecuritiesPartnership shall determine.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Upon notice to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten OfferingDemand Committee, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) Partnership may postpone effecting a registration requested pursuant to this Section 4.2 is deemed 2.2 on up to three occasions during any period of six consecutive months for a reasonable time specified in the notice but not to have exceeding 120 days in the aggregate (which period may not be extended or renewed), if (i) the General Partner shall determine in good faith that effecting the registration would materially and adversely affect an offering of securities of the Partnership the preparation of which had then been effected as a Demand Registration commenced or (ii) the registration requested pursuant to this Section 4.2 does Partnership is in possession of material non-public information the disclosure of which during the period specified in such notice the General Partner believes in good faith would not remain continuously effective until forty-five (45) days after be in the commencement best interests of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Partnership.
Appears in 2 contracts
Sources: Registration Rights Agreement (Blackstone Group L.P.), Registration Rights Agreement (Blackstone Group L.P.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date effective date of the registration statement for the IPO of the Company’s Common Stock, either Investor (as defined the “Initiating Holder”) may notify the Company that it intends to offer or cause to be offered for public sale all or any portion of its Registrable Securities in the Merger Agreement)manner specified in such request. Upon receipt of such request, the Holders Company shall promptly deliver notice of a majority such request to all other holders of Registrable Securities who shall then have ten (10) days to notify the Company in writing of their desire to be included in such registration. If the request for registration contemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to require participate in such registration shall be conditioned upon such Person’s participation in such underwritten public offering and the Company to file a Registration Statement registering for sale all or part inclusion of their respective such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable best efforts to expeditiously effect (but in any event no later than ninety (90) days after such request) the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor Act, but only to the extent provided for in this Agreement; provided however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 (i1) specifying more than three (3) times for each Investor, or (2) if the number of Registrable Securities proposed to be included in such registration are expected to have an aggregate sale price (net underwriting discounts and commissions, if any) less than $50,000,000. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within one hundred twenty (120) days after the effective date of a registration statement filed by such Holder or Holders, (ii) specifying whether the intended method Company covering a firm commitment underwritten public offering in which the holders of disposition thereof is Registrable Securities shall have been entitled to join pursuant to an Underwritten Offering (Section 4 and in which there shall have been effectively registered all Registrable Securities as defined below), to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) unless and (iii) containing all information about until the registration statement relating to such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under declared effective by the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerCommission; provided, provided however, that (i) the Holders shall not make participating Investors holding a request for a Demand Registration under this Section 4.2(a) for majority of the Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, being registered by all participating Investors (a “Participating Majority”) or (ii) the Holders will Initiating Holder, only to the extent no such Investor holds a majority of the Registrable Securities being registered by all participating Investors, may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not be entitled to require yet been declared effective, and a Participating Majority (or Initiating Holder, as applicable) may thereafter request the Company to effect more than three (3) Demand Registrations reinstate such registration statement, if permitted under the Securities Act, or to request that the Company file another registration statement, in accordance with the procedures set forth herein and without reduction in the aggregate number of demand registrations permitted under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodSection 2(a).
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of If a requested registration involves an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate and the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made offering determines in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of registration statement, (iv) Registrable Securities requested by of the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum NumberManagement Stockholders, such and (vi) Registrable Securities to be allocated pro rata among of the Holders thereof on the basis Investors. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (v) or (vi), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch holders).
(dc) A With respect to a request for registration will not pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective chosen by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration Participating Majority or (ii) the registration requested pursuant Initiating Holder, only to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders extent no such Investor holds a majority of the Registrable Securities covered being registered by such registration, then the Company shall continue to all participating Investors (which approval will not be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all unreasonably withheld or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(adelayed).
Appears in 2 contracts
Sources: Registration Rights Agreement (Intapp, Inc.), Registration Rights Agreement (Intapp, Inc.)
Demand Registration. (a) Subject to the provisions hereofIf, on or at any time on after the Effectiveness Date there is no currently effective Shelf Registration Statement, then at any time thereafter, upon written notice (a “Demand”) from a Holder or Holders holding at least 50% of the Registrable Securities (collectively, the “Demand Holder”) requesting that the Company effect the registration under the 1933 Act of any or all of the Registrable Securities held by the Demand Holder, which notice shall specify the amount and intended method or methods of disposition of such Registrable Securities, including pursuant to a shelf registration statement utilizing Rule 415 (a “Shelf Registration”), the Company shall, within five days after receiving the Demand, give written notice (the “Request Notice”) of such registration request to all other Holders, except if all the Registrable Securities are held by a single Holder, no Request Notice shall be required, and thereupon will, subject to the limitations set forth in Section 2.02(c), as promptly as possible (and in any event no later than 30 days after the date that is 180 days after of the Closing Date (as defined in the Merger AgreementDemand), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be declared effective under the Securities 1933 Act, a Registration Statement to effect the registration under the 1933 Act and any other governmental requirements or regulationsof (i) of the such Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request for a Demand Registration Holder under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, the Demand and (ii) the Holders will not be entitled to require Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by written request to the Company will not by the Holders within ten days after the giving of the Request Notice (which request shall specify the amount and intended method or methods of disposition of such Registrable Securities), all to the extent necessary to permit the disposition (in accordance with the intended method(s) thereof as aforesaid) of the Registrable Securities and such other securities so to be obligated to effect more than one (1) Demand Registration in any six (6) month periodregistered.
(b) The offering of the Registrable Securities A registration requested pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in this Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration 2.02 will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto unless: (i) it has been declared effective by the SECSEC or has otherwise become effective under the 1933 Act and remains effective for not less than 180 days, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationor, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or underwriters is required by law for the related offer, delivery of a Prospectus in connection with the sale or distribution of Registrable Securities thereunder is by an underwriter or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, dealer; or (ii) if, in it has been filed with the case of an Underwritten Offering, SEC but abandoned or withdrawn at the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) request of the proviso Demand Holder prior to Section 4.2(a). If effectiveness, other than an abandonment or withdrawal requested because of: (iA) the stock price of the Common Stock falling 15% or more since the delivery of a request for registration requested pursuant to this Section 4.2 is deemed not to have been effected 2.02, (B) a material adverse change in the Company’s and the Subsidiaries’ financial condition, business, assets, results of operations financial condition, taken as a whole, or (D) the discovery of materially adverse, non-public information concerning the Company and the Subsidiaries, taken as a whole.
(c) Notwithstanding anything in this Agreement to the contrary:
(i) if the filing of a Registration Statement in respect of a Demand would require the Company to make an Adverse Disclosure, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing of such Registration Statement for the shortest period of time determined in good faith by the Company to be necessary for such purpose; provided that the Company shall not be permitted to do so (A) more than two times during any twenty-four month period, (B) for a period not exceeding 40 days on any one occasion or (C) for a period exceeding 60 days in any 12 month period. The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 2.02(c)(i);
(ii) the registration requested Company shall not be obligated to file a Registration Statement in respect of a Demand (A) on more than two occasions or (B) within a period of one (1) month after the effective date of any other Registration Statement of the Company demanded pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.02;
(45iii) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily may elect to withdraw all or any part of its Registrable Securities from a Demand Registration registration pursuant to this Section 2.02 at any time time, and if all such Holders do so, the Company shall cease its efforts to secure registration; and
(iv) all Demand registrations pursuant to this Section 2.02 shall be on Form S−3, except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form, reasonably acceptable to the Holders of a majority of the Registrable Securities, and as shall permit the disposition of the Registrable Securities in accordance with the intended method of distribution or methods of distribution specified in the applicable Demand Holder’s requests for such registration.
(d) Nothing in this Agreement shall limit the right of any Holder to request the registration of the Registrable Securities issuable upon exercise of the Warrants by such Holder (subject to such exercise occurring prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) completion of the proviso sale of the underlying Registrable Securities prior to Section 4.2(asuch registration), notwithstanding the fact that at the time of the request such Holder Warrants are not Registrable Securities.
Appears in 2 contracts
Sources: Investor Rights Agreement (Hoku Scientific Inc), Investor Rights Agreement (Tianwei New Energy Holdings Co., LTD)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such caseIf, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringat any time after April 2, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement2006, or (ii) ifprior to April 1, 2006 in the case event of an Underwritten Offeringa CHANGE OF CONTROL or INSOLVENCY PROCEEDINGS as those terms are defined in the Purchase Agreement, the Purchaser shall request the Company in writing to register under the Securities Act of 1933, as amended (the "SECURITIES ACT"), any shares of the Common Stock, par value $0.001, of the Company (the "COMMON STOCK") issuable upon conversion of the Series A Non-Voting Convertible Preferred Stock, par value $0.001 (the "PREFERRED STOCK") and, if required by the Securities and Exchange Commission (the "SEC"), the shares of Preferred Stock owned by the Purchaser (the shares of Common Stock and, if applicable, Preferred Stock subject to such request being herein referred to as the "SUBJECT STOCK"), the Company fails shall use its reasonable best efforts to provide Full Cooperationcause the shares of Subject Stock specified in such request to be registered as soon as reasonably practicable so as to permit the sale thereof, and in connection therewith shall prepare and file a Form S-3 registration statement or such other form as is then available (or any successor form of registration statement to such Form S-3 or other available registration will statement) with the SEC under the Securities Act to effect such registration; PROVIDED, HOWEVER, that each such request shall (i) specify the number of shares of Subject Stock intended to be deemed not to have been effected for purposes of clause offered and sold, (ii) express the present intention of the proviso Purchaser to Section 4.2(a)offer or cause the offering of such shares of Subject Stock for distribution, (iii) describe the nature or method of the proposed offer and sale thereof, and (iv) contain the undertaking of the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such registration statement. If (i) The Purchaser shall not be entitled to request more than one demand registration statement under this Agreement in any twelve-month period, and the Purchaser shall not be entitled to more than a total of two requests for demand registration requested statements pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (American Millennium Corp Inc)
Demand Registration. (a) Subject At any time prior to the provisions hereofseventh anniversary of the closing date of the Public Offering, at any time on or after the date that is 180 days after the Closing Date (as defined upon written notice from a Holder in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require manner set forth in section 12(h) hereof requesting that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to of any or all of the Company (i) specifying the number of Registrable Securities to be included in such registration held by such Holder or Holdersholder, (ii) specifying whether which notice shall specify the intended method or methods of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandRegistrable Securities, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such effect, in the manner set forth in Section 5, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, PROVIDED that:
(i) if, within 5 business days of receipt of a registration request pursuant to this Section 2 (a), the Company is advised in writing (with a copy to the Holder requesting registration) by the managing underwriter of the proposed offering described below that, in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any other governmental requirements or regulationsimmediately planned offering of securities by the Company that had been contemplated by the Company prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), the Company shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering, (B) 90 days after the completion of such offering, (C) the termination of any "hold back" period obtained by the underwriter(s) of such offering from any person in connection therewith or (D) 180 days after receipt by the Registrable Securities Holder requesting registration of the managing underwriter's written opinion referred to above in this subsection (i));
(ii) if, while a registration request is pending pursuant to this Section 2(a), the Company has determined in good faith that (A) the filing of a registration statement would require the disclosure of material information that the Company has been so requested to register; provided, however, that a bona fide business purpose for preserving as confidential or (iB) the Holders Company then is unable to comply with SEC requirements applicable to the requested registration, the Company shall not make be required to effect a request for a Demand Registration under registration pursuant to this Section 4.2(a2(a) for Registrable Securities having an anticipated aggregate offering price until the earlier of less than $5,000,000(1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or the Company is able to so comply with applicable SEC requirements, as the case may be, and (2) 45 days after the Company makes such good-faith determination, PROVIDED that the Company shall not be permitted to delay a requested registration in reliance on this clause (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations once in the aggregate under this Agreement, and any 24 month period; and
(iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate file a registration statement relating to a registration request pursuant to this Section 2: (aA) more than two (2) Underwritten Offerings in within a period of 6 months after the effective date of any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by other registration statement of the Company on its own behalf or on behalf of the Holders.
demanded pursuant to this Section 2(a); (cB) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in if such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that request is for a number of Registrable Securities requested by less than 7.5% of the issued and outstanding common equity of the Company (unless the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among making the Holders thereof on the basis demand own 5% or more of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent issued and outstanding common equity of the holders of a majority Company in interest the aggregate and the demand is for all their outstanding Registrable Securities) or (C) if Holders in the aggregate own less than 5% of the Registrable Securitiesissued and outstanding common equity of the Company.
(db) A Notwithstanding any other provision of this Agreement to the contrary:
(i) a registration will requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected as a Demand Registration (and, therefore, not requested for purposes of subsection 2(a)) (A) unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included registration statement filed in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it connection therewith has become effective, (iB) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, 90% or more of the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (other than by reason of some acts or omission by such Holder) or waived by the underwriters;
(ii) a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2 (a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, except that if such request is withdrawn by a Holder prior to the filing of a registration statement with the SEC, such Holder can require the Company to disregard for purposes of Section 2 (a) (iii) one such requested registration in any court prevents six month period; and
(iii) nothing herein shall modify Holder's obligation to pay the Registration Expenses incurred in connection with any withdrawn registration.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or otherwise limits in part, an underwritten offering, a Holder shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead managing underwriter of such underwritten offering and the Company shall have the right to designate one underwriter reasonably satisfactory to the Holder as a co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a); PROVIDED that the Company shall not have the right to cause the registration of such additional securities if such Holder is advised in writing (with a copy to the Company) by the managing underwriter that, in such firm's good faith opinion, registration of such additional securities would materially and adversely affect the offering and sale of the Registrable Securities pursuant then contemplated by such Holder, except that Code shall be required to include shares of ▇▇▇▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇ to the registration, and extent required by their Executive Securities Agreements as in each case less than all of effect on the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)date hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Beacon Roofing Supply Inc)
Demand Registration. (a) Subject Except as provided in Section 2.2(b) below, upon the written request of the Holder, which request shall specify the Registerable Securities so requested to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)be registered by Holder, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether Proposed Amount thereof and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandby Holder, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will, as expeditiously as reasonably possible, use reasonable its best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that resale of the Company has been so requested to registerProposed Amount of Registerable Securities, for disposition in accordance with the intended method of disposition stated in such request; provided, however, however that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations if in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering good faith judgment of the Registrable Securities pursuant to such Demand Registration may be in the form Board of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval Directors of the Company, which approval shall not such registration would be unreasonably withheld or delayed detrimental to the Company and the Board of Directors of the Company concludes, as a result, that it is in the best interests of the Company to defer the filing of such registration statement at such time, and (ii) the Company shall (together with furnish to the Holders proposing Holder a certificate signed by an executive officer of the Company that the Board of Directors of the Company has made such a determination and that it is, therefore, necessary to distribute their securities through defer the filing of such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with registration statement, then the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement Company shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; providedright to defer such filing for the period during which such registration would be detrimental, provided that (i) the representations and warranties by, and the other agreements on the part of, the Company to and may not defer the filing for the benefit a period of more than 120 days after receipt of the underwriter(s) shall also be made to and for the benefit request of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementHolder. The Company shall not be obligated entitled to effect or participate (a) more than two (2) Underwritten Offerings include in any twelve registration statement filed pursuant to this Section 2.2: (12A) month periodsecurities of the Company held by any other security holder of the Company, and (bB) in any Underwritten Offering during any lock-up period required by an underwritten public offering, securities of the underwriter(s) in any prior underwritten offering conducted Company to be sold by the Company on for its own behalf or on behalf account, except as and to the extent that (x) in the opinion of the Holders.
managing underwriter (c) Ifif such method of disposition shall be an underwritten public offering), in connection with an Underwritten Offering, such inclusion would adversely affect the managing underwriter(s) advise marketing of the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Registerable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested sold by the Holders thereof to be included Holder or (y) in the reasonable opinion of the Holder (if such registration that does method of disposition is not exceed such Underwriters’ Maximum Numberan underwritten public offering), such Registrable inclusion would adversely affect the price at which such Registerable Securities may be sold pursuant to be allocated pro rata among the Holders thereof on the basis plan of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretodistribution; provided, however, that if, after such registration statement has been filed, the managing underwriter believes that the inclusion of all securities requested to be included in the proposed underwritten public offering would adversely affect the marketing of the Registerable Securities or, in the case of a distribution that is not an underwritten public offering, if the Holder reasonably believes that the inclusion of all securities requested to be included in such registration statement would adversely affect the price at which the Registerable Securities may be sold pursuant to the plan of distribution, then the aggregate amount of securities to be offered by the Company and such other security holders of the Company shall be reduced so as to permit the offering of all Registerable Securities requested by the Holder without such adverse effects.
(b) The Company shall not be obligated to take any action to effect any registration requested by the Holder pursuant to Section 2.2(a) hereof (i) after the Company has effected two (2) such registrations pursuant to this Agreement and each such registration has been declared or ordered effective, (ii) for a period of two (2) years after the Company has effected one such registration pursuant to Section 2.2(a) hereof and such registration has been declared or ordered effective, such two year period to commence on the date the registration statement was declared or ordered effective or (iii) at any time after the second anniversary of the expiration date of the Warrant.
(c) Notwithstanding any other provision of this Agreement to the contrary, a registration requested pursuant to this Section 2.2 shall not be deemed to have been effected (i) unless it has become effective, provided that a registration that does not become effective after the Company has filed a registration statement with respect thereto by reason of the refusal of Holder to proceed shall be deemed to have been effected by the Company unless the Holder shall have elected to pay all Company Registration Expenses in connection with such registration, (iii) if after it has become effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, court for any reason other than a misrepresentation or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered an omission by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration StatementHolder, or (iiiii) if, if the conditions to closing specified in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then purchase agreement or underwriting agreement entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied other than by reason of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration some wrongful act or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution omission, or act or omission in bad faith, by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (a) Subject In the event that following the period the Holder is prohibited from selling the Registrable Securities by the provisions of the underwriting agreement relating to the provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right Securities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), is not available to require enable the Holder or Holders to dispose of the number of shares of Registrable Securities it desires to sell at the time and in the manner it desires to do so, then upon the written request of any Holder or Holders requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementregistered; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement relating to any registration request under this Section 2(a) (A) unless the aggregate requests by the Holder or participate Holders for such registration cover not less than 5.0% of the outstanding Common Stock, (aB) with respect to more than two an aggregate of 3 registrations (2which shall be increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration statement) Underwritten Offerings in under this Section 2(a), (C) within a period of 180 days after the effective date of any twelve other registration statement relating to any registration request under this Section 2(a), or (12D) month periodif with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and (b) in any Underwritten Offering during any lock-up period required by regulations thereunder, or the underwriter(s) in any prior underwritten offering form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company on at the end of its own behalf or on behalf fiscal year, in which case the filing may be delayed until the completion of such regular audit (unless the Holders requesting such registration agree to pay the expenses of the Holders.
(c) If, Company in connection with such an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person audit other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aregular audit).
Appears in 1 contract
Sources: Registration Rights Agreement (Provantage Health Services Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 publication by the Parent of financial results covering at least 30 days after of post Merger combined operations, upon written notice from the Closing Date Representatives (as defined hereinafter defined) in the Merger Agreement), manner set forth in Section 11(h) hereof requesting that the Holders of a majority of Registrable Securities shall have Parent effect the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor of any or all of the Registrable Securities, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Parent shall use its reasonable best efforts to effect, in the Company manner set forth in Section 5, the registration under the Securities Act of all of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request, provided that: (i) specifying if, within 5 business days of receipt of a registration request pursuant to this Section 2(a), Parent is advised in writing (with a copy to the Holder requesting registration) by the lead underwriter of the proposed offering described below that, in such firm's good faith opinion, a registration at the time and on the terms requested would materially and adversely affect any immediately planned offering of securities by Parent as to which Parent was In Registration prior to receipt of notice requesting registration pursuant to this Section 2(a) (a "Transaction Blackout"), Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) 120 days after receipt by the Holder requesting registration of the lead underwriter's written opinion referred to above in this subsection (i)); (ii) if, while a registration request is pending pursuant to this Section 2(a), Parent has determined in good faith that the filing of a registration statement would require the disclosure of material non-public information that Parent has a bona fide business purpose for preserving as confidential, Parent shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (1) the date upon which such material information is otherwise disclosed to the public or ceases to be material or Parent is able to so comply with applicable SEC requirements, as the case may be, and (2) 90 days after Parent makes such good-faith determination; (iii) Parent shall not be obligated to file a registration statement relating to a registration request pursuant to this Section 2: (A) if such registration request is for a number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price then market value of less than $5,000,000, 150 million or (iiB) more than 36 months have elapsed since the Holders will not be entitled to require Effective Time; (iv) at least four months have elapsed since the Company to effect last request made by the Representatives on behalf of any Holders; and (v) no more than three (3) Demand Registrations in the aggregate demands under this Agreement, and (iii) the Company will not Section 2 shall be obligated required to effect more than one (1) Demand Registration in any six (6) month periodbe honored.
(b) The offering Notwithstanding any other provision of this Agreement to the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, contrary: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or requested on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such a Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnairesthis Section 2, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration (and, therefore, not requested for purposes of subsection 2(a)), (A) unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the registration statement filed with respect to such Holder's Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, become effective or (B) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationas a result thereof, and in each case less than all of the Registrable Securities covered requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (other than by reason of an act or omission by such Holder) or waived by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or underwriters; and (ii) if, in a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the case request of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will Holder shall be deemed not to have been effected (and, therefore, requested for purposes of clause (ii) Section 2(a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, unless such request is withdrawn by a Holder prior to the proviso to Section 4.2(a). If (i) filing of a registration requested statement with the SEC; and (c) In the event that any registration pursuant to this Section 4.2 is deemed not 2 shall involve, in whole or in part, an underwritten offering, a Holder shall have the right to have been effected designate an underwriter reasonably satisfactory to Parent as a Demand Registration or (ii) co-manager of such underwritten offering and Parent shall have the registration requested pursuant right to this Section 4.2 does not remain continuously effective until forty-five (45) days after designate the commencement of lead underwriter reasonably satisfactory to the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)underwritten offering.
Appears in 1 contract
Demand Registration. (a) Subject to If the provisions hereofCompany shall receive a written request from any DLJ Funds (or, at any time on or after one occasion under the date that is 180 days after the Closing Date (as defined in the Merger Agreement)circumstances set forth herein, the Holders of a majority of Registrable Securities shall have DLJIP Funds) (such requesting person, the right to require "REQUESTING SHAREHOLDER") that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) of all or any portion of such Requesting Shareholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give notice of such requested registration (xeach such request shall be referred to herein as a "DEMAND REGISTRATION") promptly notify all Holders from whom at least 15 Business Days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the other Shareholders and (y) thereupon shall use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(i) all Registrable Securities for which the Requesting Shareholders have requested registration under this Section 5.01, and
(ii) subject to the restrictions set forth in Sections 5.01(e) and 5.02, all other Registrable Securities of the same class as those requested to be registered by the Requesting Shareholders that any other governmental requirements or regulationsShareholders with rights to request registration under Section 5.02 (all such Shareholders, together with the Requesting Shareholders, the "REGISTERING SHAREHOLDERS") have requested the Company to register by request received by the Company within ten Business Days after such Shareholders receive the Company's notice of the Demand Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingPROVIDED that, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (iiSection 5.01(d) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (ax) more than two six Demand Registrations, (2y) Underwritten Offerings in more than one Demand Registration during any twelve (12) four-month period, and or (bz) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by aggregate gross proceeds expected to be received from the SEC, at least 75% sale of the Registrable Securities requested to be included by all Registering Shareholders in such Demand Registration are at least (A) $50,000,000 if such Demand Registration would constitute the Initial Public Offering, or (B) $25,000,000 in any Demand Registration other than the Initial Public Offering.
(b) Promptly after the expiration of the ten Business Day period referred to in Section 5.01(a)(ii) hereof, the Company will notify all Registering Shareholders of the identities of the other Registering Shareholders and the number of shares of Registrable Securities requested to be included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Shareholders may revoke such request, without liability to any of the other Registering Shareholders, by providing a notice to the Holders are Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in connection with each Demand Registration, regardless of whether such Registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 120 days (or such shorter period in which all Registrable Securities of the Registering Shareholders included in such registrationregistration have actually been sold thereunder), and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, PROVIDED that such registration statement shall not be considered a Demand Registration if, after it has become such registration statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances not registration statement have been sold thereunder; or
(ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than 66-2/3% of the Registrable Securities of the Requesting Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Shareholders that, in its view, the number of Company Securities that the Registering Shareholders and the Company propose to include in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the events described price at which such shares can be sold (the "MAXIMUM OFFERING SIZE"), the Company shall include in such registration, in the immediately two preceding sentences priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by the Requesting Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of this Section 4.2(d), each Holder the relative number of Registrable Securities shall so requested to be permitted voluntarily to withdraw included in such registration by each), and
(ii) second, all or any part of its Registrable Securities from proposed to be registered by the Company or requested to be included in such registration by any other Registering Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Company and such other Registering Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration by each).
(f) The DLJIP Funds shall only be entitled to one Demand Registration, which cannot be the Initial Public Offering. The DLJIP Funds shall not be required to exercise their Warrants as a prerequisite to making a Demand Registration at any time prior REQUEST to the commencement of marketing of Company, but the DLJIP Funds shall only be entitled to have the Company register Common Shares and not Warrants. Notwithstanding anything to the contrary in this Agreement, the DLJIP Funds shall not be entitled, in connection with such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) to have officers of the proviso to Section 4.2(a)Company prepare and make presentations at any "road shows" or before any analysts or rating agencies.
Appears in 1 contract
Sources: Shareholder Agreement (Advanstar Communications Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days earlier of (i) five (5) years after the Closing Date and (as defined in ii) one hundred eighty (180) days after the Merger Agreement)effective date of the registration statement for an IPO, the Holders upon receipt of a majority of Registrable Securities shall have the right to require written request from any Designated Holder, requesting that the Company to file effect a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act registration (a “Demand Registration”) by delivering under the Securities Act (including without limitation, registration on Form F-1 or Form S-1, or (if the Company so qualifies) registration on Form F-3 or Form S-3) covering at least forty percent (40%) and up to all of the Registrable Securities and specifying the intended method or methods of disposition thereof, the Company shall (x) within ten (10) days after receipt of a written request therefor for a Demand Registration, give written notice thereof (the “Demand Notice”) to the Company (i) specifying the number all other holders of Registrable Securities other than the Designated Holder, and (y) as expeditiously as reasonably possible, but in any event no later than one hundred and eighty (180) days to the extent possible (excluding any days which occur during a permitted Exempted Period under paragraph 3 below) after receipt of a written request for a Demand Registration, file with the SEC and use its best efforts to cause to be declared effective a registration statement (a “Demand Registration Statement”) relating to all shares of Registrable Securities which the Company has been so requested to register by such Designated Holder for sale, together with any additional Registrable Securities requested to be included in such registration by any other holders of Registrable Securities (each, a “Participating Demand Holder”), as specified by notice given by each such Participating Demand Holder or Holdersto the Company within twenty (20) days of the date the Demand Notice is given (but subject to paragraphs 1(b) and 2(c) below), to the extent required to permit the disposition (ii) specifying whether in accordance with the intended method or methods thereof, as aforesaid) of disposition thereof is pursuant the Registrable Securities so registered.
(b) The public offering shall be underwritten with a managing underwriter selected by the Company and reasonably satisfactory to an Underwritten Offering the Participating Demand Holders holding a majority in interest of the Registrable Securities (as defined below)the “Managing Underwriter”) (provided that the Participating Demand Holders shall not unreasonably refuse the selection of the Company) and if such Managing Underwriter of such Demand Registration advises the Company in writing that, and (iii) containing all information about such Holder required in its opinion, the number of Securities to be included in such Registration Statement in accordance with applicable law. As soon as practicable after offering is greater than the receipt total number of Securities which can be sold therein without having a material adverse effect on the distribution of such demandsecurities or otherwise having a material adverse effect on the marketability thereof (the “Maximum Number of Securities”), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis (based on the number of Registrable Securities held by each Participating Demand Holder). If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect may include in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and Demand Registration any other governmental requirements Securities of the Company and other Securities held by other security holders of the Company, as the Company may in its discretion determine or regulationsbe obligated to allow, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities. However, in no event shall the Company include, in the applicable offering (other than an IPO), less than thirty percent (30%) of aggregate number of the Registrable Securities that the Company Designated Holder has been so requested to register; providedbe registered. To facilitate the allocation of shares in accordance with the above provisions, howeverthe Company or the underwriters may round the number of shares allocated to any Participating Demand Holder to the nearest one hundred (100) shares. For purposes of this paragraph 1, that (i) the Holders a registration shall not make be counted as “effected” if, as a request for a Demand Registration under this Section 4.2(aresult of an exercise of the Managing Underwriter’s cutback provisions in paragraph 1(b), fewer than fifty percent (50%) for of the total number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the that Designated Holders will not have requested to be entitled to require the Company to effect more than three (3) Demand Registrations included in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodsuch registration statement are actually included.
(bc) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect effect, or participate (a) more than two (2) Underwritten Offerings in to take any twelve (12) month periodaction to effect, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) Ifregistration pursuant to this paragraph 1, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a company-initiated registration, provided that the Company shall so advise all Holders of Registrable Securities is actively employing in good faith commercially reasonable efforts to be included in cause such Underwritten Offering and registration statement to become effective; (ii) after the Company will be obligated and required has effected three (3) registrations pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holderthis paragraph 1. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will shall not be deemed to have been effected counted as a Demand Registration unless “effected” for purposes of this paragraph 1(c) until such time as the Registration Statement relating thereto applicable registration statement has been declared effective by the SEC.
(d) Notwithstanding anything to the contrary, at least 75% of the Registrable Securities requested Form F-3 or Form S-3 registrations shall not be deemed to be included in demand registrations on Form F-1 and Form S-1. Except as otherwise provided herein, there shall be no limit on the number of times the Designated Holders may request registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is on Form F-3 or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, Form S-3; provided that such registration nonetheless the Designated Holders shall count as not request for more than twice within a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Financial Year.
Appears in 1 contract
Sources: Series a Preferred Stock Subscription Agreement (I-Mab)
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on during such periods as are provided for in the Lock-Up Agreement or after as are agreed by the date Issuer (the "Demand Request") requesting that is 180 the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 30 days after such request, file with the Closing Date (as defined in the Merger Agreement), the Holders of Commission a majority of registration statement with respect to such Registrable Securities shall have the right and thereafter use its commercially reasonable efforts to require the Company cause such registration statement to file a Registration Statement registering for sale all or part of their respective Registrable Securities be declared effective under the Securities 1933 Act (a “Demand Registration”) by delivering a written request therefor for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the Company contrary:
(i) specifying the Holders may collectively exercise their rights to request registration under this Section 2.01(a) on not more than two occasions (each such registration being referred to herein as a "Demand Registration");
(ii) the Issuer shall not be required to effect the Demand Registration hereunder unless the aggregate number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled is equal to require the Company to effect or more than three (3) Demand Registrations in the aggregate under this Agreement, and 1,000,000 shares;
(iii) the Company will method of disposition requested by Holders in connection with any Demand Registration may not, without the Issuer's written consent, be a Rule 415 Offering; and
(iv) the Issuer shall not be obligated required to effect more than one (1) any Demand Registration in any six (6) month periodhereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) The offering Notwithstanding any other provision of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject this Agreement to the approval of the Companycontrary, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECeffected, at least 75% of the Registrable Securities and, therefore, not requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effectiverights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, (i) if such Demand Registration Statement has not become effective under the 1933 Act or (ii) if such Demand Registration, after it became effective under the related offer1933 Act, sale or distribution of Registrable Securities thereunder is or becomes was not maintained effective under the subject 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement. So long as a Demand Request is made by the Holders within the periods referred to in Section 2.01(a), the Holders shall not lose their right to their Demand Registration under Section 2.01 if the Demand Registration related to such Demand Request is delayed or not effected in the circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer (but not for the account of stockholders other than Holders) in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if any court prevents such Holders are advised in writing (with a copy to the Issuer) by the lead or otherwise limits managing underwriter referred to in Section 2.03(b) that, in such underwriter's good faith view, the number of shares of such Registrable Securities and additional equity securities exceeds the largest number of shares that can be sold in such registration without having an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated (or that the inclusion of shares for the account of the Issuer would, in such underwriter's good faith view, have such an adverse effect), then the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering (the "Maximum Offering Size") shall be allocated in the following priority:
(i) first, so much of the Issuer Securities proposed to be registered for the account of the Holders as would not cause the offering to exceed the Maximum Offering Size (to be allocated among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each); and
(ii) second, all Registrable Securities requested to be included in such registration for the account of the Issuer; provided that the Issuer may not include securities therein for its own account if such inclusion would result in any reduction in the Registrable Securities proposed to be sold therein by the Holders. The Holders of the Registrable Securities to be offered pursuant to paragraph (a) above may require that any equity securities be included by the registrationIssuer in the offering proposed by such Holders on the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a Holder, and in the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 7 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 2.01(d), elect to so include Registrable Securities in the Demand Registration by written notice to such effect to the Issuer specifying the number of Registrable Securities desired to be so included by such Holder.
(e) If the Issuer invokes a Market Interfering Delay during the Subsequent Period, the Issuer shall give prompt notice at least 30 days prior to the anticipated filing date of the registration statement relating to the registration which is deemed the subject of such Market Interfering Delay, to each Holder, which notice shall set forth such Holder's rights under this Section 2.01(e) and shall offer such Holder the opportunity to include in such registration statement such number of Registrable Securities as the Holders so desire hut not to have been effected as a Demand Registration or exceed up to 50% of the Registrable Securities then held by all such Holders. Upon the request of any such Holder made within 20 days after the receipt of notice from the Issuer (ii) which request shall specify the number of Registrable Securities intended to be registered by such Holder), the Issuer shall use its commercially reasonable efforts to effect the registration under the 1933 Act of all Registrable Securities that the Issuer has been so requested to register by all such Holders, to the extent requisite to permit the disposition of the Registrable Securities so to be registered, provided that if, at any time after giving notice of its intention to register any Issuer Securities pursuant to this Section 4.2 does not remain continuously 2.01(e) and prior to the effective until forty-five (45) days after the commencement date of the distribution by the Holders of the Registrable Securities covered by registration statement filed in connection with such registration, then the Company Issuer shall continue determine for any reason not to register the securities to be obligated offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to effect a Demand Registration pursuant all such Holders and, thereupon, shall be relieved of its obligation to this Section 4.2 of the register any Registrable Securities included in connection with such registration. In circumstances not including the events described in the immediately two preceding sentences of No registration effected under this Section 4.2(d)2.01(e) shall relieve the Issuer of its obligations to effect any Demand Registration to the extent required by this Agreement. The Issuer shall pay all Registration Expenses in connection with such registration during the Subsequent Period. Notwithstanding the foregoing, each Holder the Issuer shall not be entitled to both a Disadvantageous Condition Delay and a Market Interfering Delay during the Subsequent Period and is entitled to only one Market Interfering Delay during the Subsequent Period in any event. Furthermore, the duration of Registrable Securities the Subsequent Period shall be permitted voluntarily to withdraw all or any part extended by the number of its Registrable Securities from a Demand Registration at any time prior days equal to the commencement period of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of any Disadvantageous Condition Delay occurring during the proviso to Section 4.2(a)Subsequent Period.
Appears in 1 contract
Sources: Registration Rights Agreement (Credence Systems Corp)
Demand Registration. (a) Subject One or more Requesting Shareholders shall be entitled to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of an amount of Registrable Securities that, in the aggregate taking into account all of the Requesting Shareholders, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued as promptly as practicable under the Securities Act of:
(i) the offer and any other governmental requirements or regulations) sale of the Registrable Securities that which the Company has been so requested to register; provided, however, that (i) register by the Holders shall not make a request Requesting Shareholders for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price disposition in accordance with the intended method of less than $5,000,000, disposition stated in such Demand;
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and register pursuant to Section 2.1(b); and
(iii) all equity securities of the Company will not which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 2.1; all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Shares, if any, to be obligated to effect more than one (1) Demand Registration in any six (6) month periodso registered.
(b) The offering of the Registrable Securities pursuant to such Each Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, shall specify: (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, if then known and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Within five (5) business days after receipt of a Demand, the Company shall give written notice of such Demand to all other Shareholders, if any. Subject to Section 2.1(h), the Company shall include in the Demand Registration covered by each such Holder. No shares of Common Stock held by any Person other than Demand all Registrable Securities held with respect to which the Company has received a written request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been mailed. Such written request shall comply with the Holders requirements of a Demand as set forth in this Section 2.1(b).
(c) Demand Registrations shall be included in on (i) if option (ii) and (iii) below are not available, Form S-1 or any similar long-form registration (“Long-Form Registration”), (ii) if option (iii) below is not available, Form S-3 or any similar short form registration, if such short form registration is then available to the Company, or (iii) Form S-3ASR if the Company is, at the time a Demand is made, a Well-Known Seasoned Issuer (a Demand Registration without under each of clauses (ii) and (iii), a “Short-Form Registration”), in each case, in compliance with the prior written consent Securities Act and in the form of registration statements that the holders Company has customarily prepared and filed with the SEC for issuances of a majority in interest of the Registrable Securitiesits Shares. The Company shall not be required to effect more than two Long-Form Registrations per fiscal year.
(d) Effective Demand Registration. A registration will Demand Registration shall not be deemed to have been effected as effected:
(i) unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared effective by the SEC, at least 75% SEC and remains effective in compliance with the provisions of the Securities Act and the laws of any U.S. state or other jurisdiction applicable to the disposition of Registrable Securities requested covered by such registration statement until such time as all of such Registrable Securities shall have been disposed of in accordance with such registration statement or there shall cease to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that any Registrable Securities;
(ii) if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or other Governmental Entities or court for any reason other governmental or administrative agency, or if than a violation of applicable law solely by any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, Selling Shareholder and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or has not thereafter become effective;
(iiiii) if, in the case of an Underwritten Offering, the conditions to closing specified in an underwriting agreement applicable to the Company fails are not satisfied or waived other than by reason of any breach or failure by any Selling Shareholder; or
(iv) if the Company effects a postponement, declares a Suspension Period or similarly delays the exercise of rights under this Agreement pursuant to provide Full Cooperationthe terms in the paragraph below or the terms of this Agreement generally. Notwithstanding the foregoing, then such registration will the Company shall not be deemed not obligated to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) maintain the effectiveness of a registration requested Long-Form Registration, filed pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration Registration, for a period longer than 75 days or (ii) effect any Demand Registration (A) within six (6) months of the effective date of a registration requested statement with respect to a “firm commitment” Underwritten Offering in which all Piggyback Sellers were given “piggyback” rights pursuant to this Section 4.2 does 2.2 (and at least 50% of the number of Registrable Securities requested by such Piggyback Sellers to be included in such Demand Registration were included), (B) within three (3) months of the effective date of a registration statement with respect to any other Demand Registration, (C) within 90 days from the date on which a Marketed Underwritten Offering was priced or (D) if, in the reasonable judgment of the Board, it is not remain continuously effective until fortyfeasible for the Company to proceed with the Demand Registration because of the unavailability of audited or other required financial statements or financial information, provided that the Company shall use commercially reasonable efforts to obtain such financial statements or financial information as promptly as practicable. In addition, the Company shall be entitled to postpone (upon written notice to all Shareholders) the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice in any period of twelve (12) consecutive months and in no event for more than an aggregate of one-hundred twenty (120) days in any three-hundred sixty-five (45365) days after consecutive day period) if the commencement Board determines in its reasonable judgment that the filing or effectiveness of the distribution by registration statement relating to such Demand Registration would cause the Holders disclosure of the Registrable Securities covered by such registrationmaterial, then non-public information that the Company shall continue to be obligated to effect has a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)bona fide business purpose for preserving as confidential, each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registrationprovided, provided however, that such registration nonetheless postponement shall count terminate at such time that such information is no longer material, non-public information or the Company no longer has a bona fide business purpose for preserving such information as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)confidential.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of Upon written notice from a majority Holder of Registrable Securities shall have in the right to require manner set forth in Section 12(g) hereof requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of any or all or part of their respective the Registrable Securities held by such Holder, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Company will use its best efforts to effect (at the earliest practicable date) the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including, but not limited to, an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act (a “Demand Registration”"Rule 415 Offering") by delivering a written request therefor to if the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form)), except that:
(i) specifying if, after the number Primary EDS Ownership Reduction, upon receipt of Registrable Securities a registration request pursuant to this Section 2(a), the Company is advised in writing setting forth specific reasons (with a copy to the person requesting registration pursuant to this Section 2(a)), by a nationally recognized independent investment banking firm selected by the Company that, in such firm's opinion, a registration at the time and on the terms requested would materially and adversely affect any underwritten public equity financing by the Company that had been contemplated by the Company prior to receipt of notice requesting registration pursuant to this Section 2(a) and that had been planned to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt completed within 90 days of such demandnotice (a "Transaction Blackout"), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be required to effect a registration pursuant to this Section 2(a) until the earliest to occur of (A) the abandonment of such financing, (B) 90 days after the completion of such financing, (C) the termination of any "hold back" or "lock up" period obtained by the underwriter(s) selected by the Company from any person in connection with such financing or (D) 165 days after receipt by the Holder requesting registration of written notice of such Transaction Blackout (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance together with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) copy of the investment banking firm opinion referred to above in this subsection (i)) (the written notice of such Transaction Blackout and a copy of the investment banking firm opinion must be given to the Holder of Registrable Securities requesting registration pursuant to this Section 2(a) within 10 days of receipt of such the registration request);
(ii) if, after the Primary EDS Ownership Reduction, while a registration request is pending pursuant to this Section 2(a), counsel for the Company determines in good faith that (A) the filing of a registration statement would require the disclosure of material information that the Company has been so requested to register; provided, however, that a bona fide business purpose for preserving as confidential or (iB) the Holders Company then is unable to comply with SEC requirements, the Company shall not make be required to effect a request for a Demand Registration under registration pursuant to this Section 4.2(a2(a) until the earliest to occur of (1) the date upon which such material information is disclosed to the public or ceases to be material or the Company is able to so comply with SEC requirements, as the case may be, or (2) 45 days after counsel for the Company initially makes such good faith determination (such counsel shall make such determination promptly and shall give written notice of such determination to the Holder of Registrable Securities having requesting registration within 5 days of making such determination);
(iii) EDS' transferees, collectively, shall have the right to exercise registration rights pursuant to this Section 2 an anticipated aggregate offering price of less than $5,000,000five (5) times (it being acknowledged that EDS' registration rights pursuant to this Section 2 are independent of any rights it transfers to transferees); and
(iv) subsequent to the Secondary EDS Ownership Reduction, (ii) EDS shall have the Holders will not be entitled right to require the Company exercise its registration rights pursuant to effect more than this Section 2 an aggregate of three (3) Demand Registrations in times (it being acknowledged that prior to the aggregate under this AgreementSecondary EDS Ownership Reduction, and (iii) there shall be no limit to the Company will not be obligated to effect more than one (1) Demand Registration in number of occasions on which EDS or any six (6) month periodof its affiliates may exercise such rights).
(b) The offering Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder of Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval this Section 2 shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto (and, therefore, not exercised for purposes of subsection 2(a)), (i) if it has been declared effective by the SECnot become effective, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that (ii) if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement 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 some act or omission by such Holder of Registrable Securities.
(c) In the event that any court prevents registration pursuant to this Section 2 (other than subsection (2)(a)(iii)) shall involve, in whole or otherwise limits in part, an underwritten offering, EDS shall have the right to designate an underwriter reasonably satisfactory to the Company as the lead underwriter of such underwritten offering.
(d) The Company shall have the right to cause the registration of additional securities for sale for the account of any person (including the Company) in any registration of Registrable Securities requested by EDS pursuant to Section 2(a); except, that the Company shall not have the right to cause the registration of such additional securities if EDS is advised in writing setting forth specific reasons (with a copy to the Company) by a nationally recognized independent investment banking firm selected by EDS that, in such firm's opinion, registration of such additional securities would materially and adversely affect the offering and sale of the Registrable Securities pursuant to then contemplated by EDS. EDS may require that any such additional securities be included in the registration, offering proposed by EDS on the same terms and in each case less than all of conditions as the Registrable Securities covered by that are included therein.
(e) After the effective Registration Statement are actually sold by Primary EDS Ownership Reduction, in the event that, at any time after any Rule 415 Offering is declared effective, the general counsel of the Company determines in good faith that the sale of Registrable Securities in such Rule 415 Offering would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or that the Company is unable to comply with SEC requirements, Holders selling Holder or Holders pursuant Registrable Securities in such Rule 415 Offering shall, upon written notice of such good faith determination, suspend sales of such Registrable Securities for a period beginning on the date of receipt of such notice and expiring on the earlier of (i) the date upon which such material information is disclosed to the Registration Statementpublic or ceases to be material or the Company is able to comply with SEC requirements, or as the case may be, and (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) 45 days after the commencement general counsel of the distribution by the Holders of the Registrable Securities covered by Company initially makes such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)good faith determination.
Appears in 1 contract
Sources: Registration Rights Agreement (Unigraphics Solutions Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after following the Closing Date (and as defined in many times as may be required for the Merger Agreement)disposition of all Registrable Securities, any of the Initiating Holders of may give a majority of Registrable Securities shall have the right written request to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a of all or any portion of such Holder’s Registrable Securities, which written request therefor to the Company (i) specifying shall specify the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether registered and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect each such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested shall be referred to register; provided, however, that (i) the Holders shall not make herein as a request for a “Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten OfferingRegistration”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, ; provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of2.1(d), the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect any Demand Registration (x) with respect to Registrable Securities that are held in escrow under the Escrow Agreement, (y) within 90 days after the effective date of a previous Registration Statement (or participate (asuch shorter period as the Company may determine in its sole discretion) more than two (2) Underwritten Offerings in any twelve (12) month periodpursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, actually sold at least 75% of the Registrable Securities requested to be included therein or (z) as provided in Section 2.7. Thereafter, the Company shall promptly, and in any event, within five (5) days after receiving such request, give written notice of the proposed registration to all other Holders and use its commercially reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of:
(i) all Registrable Securities for which the requesting Holder has requested registration under this Section 2.1;
(ii) all Registrable Securities held by any other Holder specified in a written request received by the Holders are Company within five (5) days after written notice regarding such registration from the Company is delivered; and
(iii) any Common Stock to be offered or sold by the Company; to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities to be so registered. At any time the Company is eligible for use of an Automatic Shelf Registration Statement, if specified in such notice for a Demand Registration, such registration shall occur on such form.
(b) At any time prior to the effective date of the Registration Statement relating to such Demand Registration, any requesting Holder may, upon notice to the Company, revoke their request in whole or in part with respect to the number of shares of Registrable Securities requested to be included in such registrationRegistration Statement.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the Registration Statement relating thereto (A) has become effective under the Securities Act and (B) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Company has complied Holders included in all material respects with its obligations under this Agreement such registration have actually been sold thereunder) or (y) with respect theretoto a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided, however, provided that such Registration Statement shall not be considered a Demand Registration if, after it has become such Registration Statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registrationRegistration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 66.67% of the Registrable Securities of the Holders sought to be included in such registration are included.
(e) The Company shall not include in any Demand Registration or Shelf Registration any securities that are not Registrable Securities without the prior written consent of the selling Holders. In circumstances not including If a Demand Registration involves a Public Offering and the events described lead managing underwriter advises the Company and the selling Holders that, in its view, the immediately two preceding sentences number of this Section 4.2(d), each Holder shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material and adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall be permitted voluntarily include in such registration, up to withdraw the Maximum Offering Size, first, all or any part of its Registrable Securities from a Demand Registration at requested to be registered by the Holders, based on the pro rata percentage of Registrable Securities held by such Holders (determined based on the aggregate number of Registrable Securities held by each such Holder), and second, any time prior securities proposed to be registered by the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Target Hospitality Corp.)
Demand Registration. (a) Subject to If the provisions hereof, at any time on or after the date that is 180 days after the Closing Date Purchaser shall request (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require "DEMAND") the Company in writing to file a Registration Statement registering for sale all or part of their respective Registrable Securities register under the Securities Act of 1933, as amended (a “Demand Registration”) by delivering a written request therefor to the "SECURITIES ACT"), any shares of the Common Stock of the Company (ithe "COMMON STOCK") specifying acquired by the number Purchaser upon exercise of Registrable Securities either of the Warrants (the shares of Common Stock so acquired and subject to be included in such registration by such Holder or Holders, (ii) specifying whether request being herein referred to as the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below"SUBJECT STOCK"), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause the shares of Subject Stock specified in such request to be registered as soon as reasonably practicable so as to permit the sale thereof, and in connection therewith shall prepare and file a Form S-3 registration statement (including, without limitation, appropriate qualification under applicable blue sky or similar form which may be promulgated in the future) or such other state securities laws form as to which the Company is eligible to file with the Securities and appropriate compliance with applicable regulations issued Exchange Commission (the "SEC") under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registereffect such registration; provided, however, that such request shall (i) specify the number of shares of Subject Stock intended to be offered and sold, which number of shares shall represent Subject Stock with an aggregate market value of at least $500,000, based on the average closing sale price of the Common Stock for the ten (10) trading days preceding the date prior to the date of the Purchaser's request first received by the Company, (ii) express the present intention of the Purchaser to offer or cause the offering of such shares of Subject Stock for distribution, (iii) describe the nature or method of the proposed offer and sale thereof, and (iv) contain the undertaking of the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such registration statement.
(b) Notwithstanding the foregoing and Section 4 hereof, upon delivery to the Purchaser of a written notice, the Company shall be entitled to postpone filing of the registration statement, and may withhold efforts to cause the registration statement to become effective, for a reasonable period of time (not to exceed ninety (90) days) if (i) the Holders Company is contemplating filing a registration statement within ninety (90) days of such request for registration (which shall not make a request for a Demand Registration affect the Purchaser's other rights hereunder, including without limitation the Purchaser's rights under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0003 below), (ii) the Holders will not be entitled to require Company determines in good faith that such registration might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to effect more than three (3undertake such transaction) Demand Registrations in at the aggregate under this Agreementtime the right to delay is exercised, and or (iii) the Company will determines in good faith that such registration might involve initial or continuing disclosure obligations that might not be obligated in the best interests of the Company or its shareholders. The Company shall not be required to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of demand registration statement under this Agreement; provided, however, that if any postponement pursuant to the preceding sentence extends beyond the date on which the Warrants expire, the obligations of the Company hereunder shall be extended by a number of days necessary to complete the distribution of securities subject to such postponement. In a case of postponement pursuant to clause (i) of the representations and warranties by, and the other agreements on the part offirst sentence of this paragraph (b), the Company to and request for registration will not constitute a Demand for purposes of determining the benefit number of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder Demands permitted pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering this paragraph unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted contemplated registration by the Company on its own behalf is abandoned or on behalf not consummated within the ninety (90) day period and then the Company successfully registers the shares of Subject Stock pursuant to the HoldersDemand.
(c) If, in connection with an Underwritten Offeringafter a registration statement becomes effective, the managing underwriter(s) advise Company advises the Purchaser that the Company considers it appropriate for the registration statement to be amended, the Purchaser shall suspend any further sales of the registered shares until the Company advises the Purchaser that the registration statement has been amended. The ninety (90) day time period referred to in Section 4 hereof during which the registration statement must be kept current after its or their reasonable opinion effective date shall be extended for an additional number of business days equal to the number of securities proposed business days during which the right to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No sell shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities was suspended pursuant to the registrationpreceding sentence, and but in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, no event will the Company fails be required to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) update the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days statement after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences expiration of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Demand Registration. (a) Subject to Commencing on the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)applicable Initial Registration Date, the Holders of DLJ Entities may make a majority of Registrable Securities shall have written request (any such requesting Person, a "SELLING INVESTOR") that the right to require Issuer effect the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act of all or a portion of such Selling Investor's applicable Registerable Securities, and specifying the intended method of disposition thereof. The Issuer will promptly give written notice of such requested registration (a “Demand Registration”"DEMAND REGISTRATION") by delivering a written request therefor at least thirty (30) days prior to the Company anticipated filing date of the registration statement relating to such Demand Registration to the other Investors and thereupon will use its best efforts to effect, as soon as practicable, the registration under the Securities Act of:
(i) specifying the number Registerable Securities which the Issuer has been so requested to register by the Selling Investor, then held by the Selling Investor;
(ii) subject to Section 5.2, all other Securities of Registrable the same type as the Registerable Securities sought to be registered by the Selling Investor which any other Investor entitled to request the Issuer to effect an Incidental Registration (as such term is defined in Section 5.2) pursuant to Section 5.2 (all such Investors, together with the Selling Investors, the "HOLDERS") has requested the Issuer to register by written request received by the Issuer within fifteen (15) days after the receipt by such other Investors of such written notice given by the Issuer; and
(iii) shares of Common Stock desired to be registered by the Issuer as approved pursuant to Section 2.4 hereof, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registerable Securities so to be registered; provided that, subject to Section 5.1(c) hereof, the Issuer shall not be obligated to effect, pursuant to this Section 5.1(a), (A) more than one Demand Registration during any six-month period, (B) more than four Demand Registrations in connection with the registration of the Senior Preferred Stock (which registration may also relate to Warrants to be offered in connection with such Senior Preferred Stock), (C) more than four Demand Registrations in connection with the registration of the Junior Preferred Stock (which registration may also relate to Warrants to be offered in connection with such Junior Preferred Stock), (D) more than four Demand Registrations in connection with the registration of the Warrants (which registration may also relate to the Senior Preferred Stock and/or the Junior Preferred Stock to be offered in connection with such Warrants), and (E) more than two Demand Registrations in connection with the registration of any other Registerable Securities. If Warrants are sold in connection with a registered or Rule 144A sale of the Senior Preferred Stock or the Junior Preferred Stock, the Issuer shall (not earlier than the time the Issuer registers the Senior Preferred Stock or the Junior Preferred Stock (or exchange securities in the case of a Rule 144A offering)) file a shelf registration statement relating to all the Common Stock underlying such Warrants; provided that any holder of Warrants seeking to offer, purchase or sell any of the Common Stock underlying such Warrants will first notify the Issuer and allow the Issuer to prepare an appropriate prospectus supplement to be used in such transaction, and that the Issuer's obligation to prepare such a prospectus supplement (and accordingly the ability of the holder to effect such offer, purchase or sale) will be subject to customary deferral provisions; and provided further that in no event shall the Issuer be entitled to postpone or suspend the preparation and filing of such prospectus supplement for a period exceeding ninety (90) days. The Issuer shall not be obligated to effect a Demand Registration with respect to shares of Common Stock unless the Common Stock requested to be included in such registration Demand Registration has, in the reasonable judgment of the Board of Directors exercised in good faith, a fair market value of at least (1) $25,000,000 if such Demand Registration would constitute an Initial Public Offering; provided that if the estimated proceeds from the sale of all the Common Stock to be sold by the Selling Investor is less than such Holder amount and the DLJ Entities and Orkla have requested the Issuer to register all of the Registerable Securities owned by them consisting of Warrants and/or Warrant Shares and/or Common Stock, then the Selling Investor may require the Issuer to issue, or Holdersan Other Investor to sell, a sufficient number of shares of Common Stock in connection with the Initial Public Offering to result in aggregate proceeds of at least $25,000,000 or (ii2) specifying whether in all other cases, $15,000,000. Promptly after the intended method expiration of disposition thereof is pursuant the 15-day period referred to an Underwritten Offering (as defined below)in Section 5.1(a)(ii) hereof, and (iii) containing the Issuer will notify all information about such Holder required the Holders to be included in the Demand Registration of the other Holders and the number of shares of Registerable Securities requested to be included therein. The Selling Investors requesting a registration under this Section 5.1(a)(ii) may, at any time prior to the effective date of the registration statement relating to such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of registration, revoke such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (includingrequest, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and liability to any other governmental requirements or regulations) of the Registrable Securities that other Holders, by providing a written notice to the Company has been Issuer revoking such request, in which case such request, so requested to register; providedrevoked, however, that (i) the Holders shall not make a request for be treated as a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) unless the Holders will not be entitled to require Selling Investors who requested such registration pay the Company to effect more than Registration Expenses or the Selling Investors requesting registration shall have on three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodprior occasions revoked registration requests.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingIssuer will, subject to the approval of the CompanySection 5.1(a), which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together pay all Registration Expenses in connection with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersDemand Registration.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested pursuant to this Section 5.1 shall not be deemed to have been effected as a Demand Registration effected, subject to Section 5.1(a), unless the Registration Statement registration statement relating thereto (i) has been declared become effective by under the SEC, Securities Act and (ii) has remained effective for a period of at least 75% 270 days (or such shorter period in which all Registerable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section 5.1 becomes effective and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) less than 85% of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Registerable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)registration statement has been sold thereunder, each Holder of Registrable Securities such registration statement shall be permitted voluntarily to withdraw all or any part at the sole expense of its Registrable Securities from the Issuer and shall not be considered a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereofArticle III, at any time on or after the date that is 180 days six (6) month anniversary of the Company’s initial Public Offering after the Closing Date Effective Date, (as defined in i) any Holder of at least 10% of the Merger Agreement), the Holders of a majority of Registrable Securities shall have then outstanding or (ii) the right GSAM Investors or their Affiliates, so long as they Beneficially Own at least one-third of the Registrable Securities Beneficially Owned by the GSAM Investors on the Effective Date, may request in writing (specifying that such request is being made pursuant to require this Section 2.01(a) and the intended method or methods of disposition thereof) that the Company to file a Registration Statement registering for sale registration statement (or corresponding successor document) under the Securities Act, of all or part of its or their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to ). Thereafter, the Company (i) specifying the number shall promptly notify all other Holders in writing of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandrequest, and each such Holder in lieu of exercising its rights under Section 2.02 may elect (by written notice sent to the Company shall within ten (x10) promptly notify all Holders Business Days from whom the request for registration has not been received and (ydate of the aforementioned notice) to have Registrable Securities included in such Demand Registration thereof pursuant to this Section 2.01(a). Thereupon the Company shall, as expeditiously as is reasonably possible, use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the all shares of Registrable Securities that which the Company has been so requested to registerregister by such Holders for sale, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered; provided, however, that (i) the Holders Company shall not make be required to effect a request for registration of Registrable Securities on a Demand Registration under Form S-1 or other “long-form” registration pursuant to this Section 4.2(a2.01(a) for unless the Registrable Securities having requested by all Holders to be registered have an anticipated aggregate public offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in before any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from of not less than Fifteen Million Dollars ($15,000,000); and further provided, however, the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) more than two (2) Underwritten Offerings in registrations on Form S-1 or other “long form” registration of any twelve Registrable Securities pursuant to this Section 2.01(a). There shall be no aggregate limit on short-form registrations on Form S-3 or any successor form so long as the anticipated aggregate public offering price (12before any underwriting discounts and commissions) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included registered on each such short-form registration is not less than Three Million Dollars ($3,000,000). Except as otherwise provided in Section 2.04, all expenses of such Underwritten Offering and (ii) the Company will registration shall be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested borne by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany.
(db) A registration will not be deemed to have been effected count as a Demand Registration until the applicable registration statement has become effective (unless the requesting Holder withdraws all of its Registrable Securities and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included requesting Holder pays all registration expenses in the registration by the Holders are included in connection with such withdrawn registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to a registration is either (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement action of the SEC Commission or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale (other than because of the Registrable Securities pursuant to the registration, and in each case less than all a violation of the Registrable Securities covered applicable law by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, a Holder) or (iiy) ifwithdrawn because of any development affecting the Company, in the either case of an Underwritten Offering, the Company fails to provide Full Cooperationbefore being in effect for more than 90 days, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed and will not to have been effected count as a Demand Registration or unless at least ninety percent (ii90%) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included thereon have been sold or otherwise disposed of.
(c) If the managing underwriter of a Demand Registration shall advise the Company in such registration. In circumstances not including writing that, in its opinion, the events described inclusion of all of the Registrable Securities requested to be included in the immediately two preceding sentences Demand Registration would materially and adversely affect the distribution of this Section 4.2(d)a smaller amount of such Registrable Securities, each Holder then all selling Holders shall reduce the amount of Registrable Securities each intended to distribute through such offering on a pro-rata basis such that the Registrable Securities to be included in the Demand Registration shall be permitted voluntarily reduced to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)smaller amount.
Appears in 1 contract
Sources: Restructuring Agreement (Ener1 Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on Any one or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), more of the Holders of a majority of Registrable Securities (the “Initiating Holders”) shall have the right to require request the Company to file a effect one registration on Form S-3 (the “Demand Registration Statement registering for sale Statement”) with respect to all or a part of their respective Registrable Securities under the Securities Act Shares (a “Demand Registration”) by delivering a written such request therefor to the Company (i) specifying shall be in writing and shall state the number of Registrable Securities Shares to be disposed of and the intended method of disposition). Notwithstanding the foregoing, the Company shall not be obligated to effect, or take any action to effect, any such registration pursuant to this Section 4:
(a) so long as the Shelf Registration Statement is effective (subject to Sections 5(c) and (d) herein); or
(b) if the Shares requested to be included in such registration by such Holder or Holders, (ii) specifying whether have an aggregate fair market value of less than $50,000,000. Subject to the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandforegoing, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) will use its commercially reasonable best efforts to effect promptly the registration of Shares on Form S-3 to the extent requested by the Initiating Holders thereof for purposes of disposition and, subject to Sections 5(c) and (d) hereof, to keep such registration (includingDemand Registration Statement effective for a period not in excess of 60 days or until the Initiating Holders have completed the distribution described in the Demand Registration Statement, without limitationwhichever first occurs and if the Demand Registration Statement is not effective for this period, appropriate qualification then it shall not count as a Demand Registration Statement under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued this Agreement. The Demand Registration Statement will contain a plan of distribution as designated by the Holders. The Demand Registration Statement shall also cover, to the extent allowable under the Securities Act and any other governmental requirements the rules promulgated thereunder (including Rule 416) such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or regulations) similar transactions with respect to the Shares. If the Initiating Holder (or a majority in interest of the Registrable Securities that Initiating Holders) so elect, the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities Shares pursuant to such Demand Registration may Statement shall be in the form of a firm commitment underwritten offering, in which case all persons or entities participating in such registration may be required to sell their Shares which are included in such registration to the underwriters at the same price and on the same terms of underwriting as is applicable to the Initiating Holder or Holders. If the Demand Registration Statement involves an underwritten public offering (an “Underwritten Offering”). In offering, the sole or managing underwriters and any additional investment bankers and managers to be used in connection with such case, (i) registration shall be selected by the Company may designate the managing underwriter(s) Initiating Holder or a majority in interest of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingInitiating Holders, subject to the approval of the Company, which approval shall not be unreasonably withheld withheld, delayed or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersconditioned.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined date upon which the Registration Statement for use in the Merger Agreement), the Holders of a majority of Registrable Securities Initial Public Offering shall have the right to require been declared effective, if the Company shall be requested by the holders of at least (i) 5.0% of the then outstanding Common Stock or (ii) $5,000,000 of Restricted Securities proposed to file a Registration Statement registering for sale all or part of their respective Registrable Securities be sold in the registration (based on the proposed offering price thereof) to effect the registration under the Securities Act (a “Demand Registration”) by delivering a of Registrable Shares, it shall within 10 days of such request give written request therefor notice to the other Investors of its requirement to so register such Registrable Shares and, upon the written request, delivered to the Company within 30 days after delivery of any such notice by the Company, of the other Investors to include in such registration Registrable Shares (i) specifying which request shall specify the number of Registrable Securities Shares proposed to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowregistration), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) shall, subject to Section 2(b), promptly notify all Holders from whom the request for registration has not been received and (y) thereafter use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities Shares that the Company has been so requested to register; provided, however, that (i) register for sale in accordance with the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price method of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations distribution specified in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering initiating request. If such method of the Registrable Securities pursuant to such Demand Registration may be in the form of distribution is an underwritten public offering (an “Underwritten Public Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that underwriter for such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringoffering, subject to the approval of those Investors holding a majority of the Company, Registrable Shares requested to be included in such offering (which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and withheld).
(b) shall not Anything contained in any event, absent fraud or intentional misrepresentation, exceed an amount equal Section 2(a) to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from contrary notwithstanding, the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate pursuant to Section 2(a) any registration under the Securities Act except in accordance with the following provisions:
(ai) the Company shall not be obligated to file and cause to become effective (A) more than two one Registration Statement initiated pursuant to Section 2(a) within any one-year period; provided, that if the Investors were unable to sell at least 50% of the Registrable Shares requested to be included in the last registration pursuant to Section 2(a) as a result of an underwriter's cutback, then additional registrations shall be added to this Section 2(b)(i) until the foregoing condition is satisfied; (2B) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering Registration Statement during any lock-up period required by in which any other registration statement (other than on Form S-4 or Form S-8 promulgated under the underwriter(sSecurities Act or any successor forms thereto) in pursuant to which Primary Shares are to be or were sold has been filed and not withdrawn or has been declared effective within the prior 180 days or (C) any prior underwritten offering conducted by Registration Statement pursuant to Section 2(a) if the Company on its own behalf or on behalf shall reasonably conclude that the anticipated gross offering price of the Holdersall Registrable Shares to be included therein would be less than $5,000,000.
(cii) Ifthe Company may delay the filing or effectiveness of any Registration Statement for a period of up to 90 days after the date of a request for registration pursuant to Section 2(a) if (A) the Company is engaged, or proposes to engage, in connection a Material Transaction or (B) the Company's Board of Directors has determined that such registration would have a material adverse effect upon the Company or its then current business plans; and
(iii) with an Underwritten Offeringrespect to any registration pursuant to Section 2(a), the Company may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter(s) advise underwriter advises the Company that in its or their reasonable opinion the number inclusion of securities all Registrable Shares, Primary Shares and Other Shares proposed to be included in such registration exceeds would interfere with the Underwriters’ Maximum Numbersuccessful marketing (including pricing) of all such securities, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof Shares, Primary Shares and Other Shares proposed to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of following order (subject to any senior registration rights applicable to Other Shares):
(A) first, the Registrable SecuritiesShares held by the Investors requesting that their Registrable Shares be included in such registration pursuant to Section 2(a), pro rata based upon the number of Restricted Securities owned by each such Investor at the time of such registration; provided, that if the managing underwriter advises the Company that the pro rata inclusion of Registrable Shares held by all Investors would interfere with the successful marketing (including pricing) of such securities, then the managing underwriter may reduce that percentage of Registrable Shares held by Investors that may be included pro rata in the proposed registration;
(B) second, the Primary Shares; and
(C) third, the Other Shares.
(dc) A requested registration will not under this Section 2 may be deemed rescinded prior to have been effected as a Demand Registration unless the Registration Statement relating thereto has been such registration being declared effective by the SEC, at least 75% of the Registrable Securities requested Commission by written notice to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretofrom those Investors who initiated the request; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such rescinded registration will be deemed shall not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) count as a registration requested initiated pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then 2 if the Company shall continue have been reimbursed (pro rata by the Investors requesting registration or in such other proportion as they may agree) for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration; provided further, that such Investors shall not be required to be obligated to reimburse the Company if such rescission shall have been caused by, or made in response to, the material adverse effect a Demand Registration pursuant to this Section 4.2 of an event on the business, prospects, properties, condition (financial or otherwise) or operations of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders The Rightholders of a majority of all Registrable Securities Securities, voting as a single class, shall have the right right, exercisable by giving written notice to the Company, to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act to register the offer and sale of all or any portion of such holders’ (in either case, the “Rightholders”) Registrable Securities in the Company (in either case, a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, ; provided that the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be obligated to effect such a registration pursuant to this Section 2.1(a) (including, without limitation, appropriate qualification under applicable blue sky other than a registration on Form S-3 or other state securities laws any successor form from and appropriate compliance with applicable regulations issued under after the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that time the Company has been so requested is eligible to register; provideduse Form S-3 or any successor form, howeveras applicable, that (i) as to which the Holders Rightholders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled have unlimited rights to require the Company to effect a registration) on more than three (3) Demand Registrations in occasions. In the aggregate under this Agreementevent of such a demand, and (iii) the Company will not be obligated to effect more than one shall, within twenty (120) Demand Registration in any six (6) month period.
(b) The offering days of the Registrable Securities pursuant receipt thereof, give written notice of such request to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”)all other Rightholders. In the event that any such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter Rightholders wish to participate in the Underwritten Offeringregistration (the “Opt-in Shareholders”), subject they shall so advise the Company within twenty (20) days of receipt of such notice and shall include in their notice the number of Registrable Securities they desire to so register. Notwithstanding any other provision of this section, if the managing underwriter determines that marketing factors require a limitation on the number of shares to be underwritten, then the Company shall so advise the Opt-in Shareholders which would otherwise be underwritten pursuant to this provision, and the number of shares that may be included in the underwriting shall be allocated to the Opt-in Shareholders in proportion, as nearly as practicable, to the respective amounts of Common Shares held by such Opt-in Shareholders at the time of filing the registration statement.; provided, further, that the number of shares owned by the Rightholders to be included in such underwriting and registration shall not be reduced unless all other securities held by other shareholders of the Company are first entirely excluded from the underwriting and registration. The managing underwriter(s) for such offering shall be selected by the Company with the prior written approval of the CompanyRightholders holding a majority of the Common Shares held by Rightholders to be offered for sale pursuant to the Demand Registration, which approval shall not be unreasonably withheld or delayed and (ii) withheld. In the event the Company shall has not selected an underwriter approved by such Rightholders within thirty (together with 30) days of the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofRightholders’ notice, the Company to and for the benefit Rightholders holding a majority of the underwriter(s) shall also Common Shares held by Rightholders to be made to and offered for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished sale pursuant to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to Demand Registration may select the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementunderwriter. The Company shall not be obligated deemed to effect or participate (ahave effected a Demand Registration pursuant to this Section 2.1(a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by unless the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company Rightholders shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only have sold that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, representing at least 75% fifty percent (50%) of the Registrable Securities requested to be included registered by the Rightholders.
(b) The Company may postpone for up to 120 days the filing or effectiveness of a registration statement with respect to a Demand Registration if the Company furnishes to Rightholders requesting a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief executive officer stating that, in the good faith judgment of the Company’s Board of Directors, it would be materially detrimental to the Company and its stockholders for such registration by statement to be filed during the Holders are included period of such postponement for one or more of the following reasons: (i) the filing of such registration statement during such period would materially interfere with an acquisition, corporate reorganization or other transaction that the Company would disclose in a periodic report filed pursuant to the Securities Exchange Act; (ii) the filing of such registrationregistration statement during such period would require disclosure of material, and non-public information relating to the Company which the Company has complied a bona fide business purpose for preserving as confidential; or (iii) the filing of such registration statement during such period would result in all material respects the Company’s inability to comply with its obligations under this Agreement with respect theretoapplicable requirements of the Securities Act; and it is therefore necessary to defer the filing of such registration statement for such period; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution Company may not invoke this right more than once in any 12-month period. In the event of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringpostponement, the Company fails Rightholders shall be entitled to provide Full Cooperationwithdraw such request and if withdrawn, then such registration will Demand Registration shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) Subject In addition to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Section 10.01, the Majority Holders of as a majority of Registrable Securities group, shall have the right (though such right need not be jointly exercised by the Holders of the Certificates), on not more than one occasion in the aggregate (except as provided in clause (d) below) (it being understood and agreed that two or more Holders of Certificates may make a joint Demand hereunder or any Holder of Certificates may join in a Demand made by any other Holder of Certificates, and any such joint Demand or joining in of a Demand shall be deemed to be a single Demand for all purposes hereof), and no more than once during any six-month period, to require the Company to file a Registration Statement registering register for offer and sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”"Demand") all or a portion of the Certificate Shares held, or represented by delivering a written request therefor Certificates held by such Holders, subject to the Company (i) specifying restrictions set forth herein; provided that no Holders of Certificates shall be entitled to make a Demand hereunder unless the number aggregate offering price of Registrable Securities the securities to be included offered in such registration by Demand (net of underwriting discounts and commissions) exceeds the amounts set forth below depending on the time such Holder or HoldersDemand is exercised, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. follows: As soon promptly as practicable after the receipt Company receives from a Holder of such demandCertificates (together with any other Holder who elects to participate in the registration requested under the Demand, the "Demanding Holder") a notice pursuant to this Section 10.02(a) (a "Demand Notice"), a copy of which shall have also been delivered to each of the other Holders of Certificates at the same time as to the Company, demanding that the Company register for offer and sale under the Securities Act Certificate Shares, subject to Section 10.02(b), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (yi) use all reasonable best efforts to effect file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such registration form as the Company may reasonably deem appropriate (includingprovided that the Company shall not, without limitationunless the Company otherwise determines, appropriate qualification under applicable blue sky be obligated to register any securities on a "shelf" Registration Statement or other state otherwise to register securities laws for offer or sale on a continuous or delayed basis and appropriate compliance with applicable regulations issued the Company actually maintains such "shelf" Registration Statement effective) and, thereafter, (ii) after the filing of an initial version of the Registration Statement, use reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act and any other governmental requirements or regulations) as promptly as practicable after the date of the Registrable Securities that the Company has been so requested to registerfiling of such Registration Statement; provided, however, that no Demanding Holder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Certificate Shares unless such Demanding Holder has made an Election. Subject to Section 10.02(b), the Company shall use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by such Demanding Holder or Holders for resales of Certificate Shares for an Effectiveness Period ending on the earlier of (i) 30 days from the Holders shall not make a request for a Demand Effective Time of such Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Statement and (ii) such time as all of such Certificate Shares have been disposed of by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodselling Holders.
(b) The offering Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registrable Securities pursuant Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to such Demand Registration may be not disclose in the form of an underwritten public offering (an “Underwritten Offering”). In such caseRegistration Statement a planned or proposed financing, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringacquisition or other corporate transaction or other material information, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with have determined in good faith that such disclosure is not in the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings best interests of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) its stockholders; provided that no one such postponement shall also be made to exceed 90 days in any six-month period and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of all such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) postponements shall not exceed 180 days in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementaggregate. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf advise each of the HoldersDemanding Holders in writing of any such determination as promptly as practicable after such determination.
(c) If, in In connection with an Underwritten Offeringunderwritten offering, if the managing underwriter(s) underwriter or underwriters advise the Company that in its or their reasonable opinion the number of securities proposed Applicable Securities subject to a Demand exceeds the number which can be included sold in such registration exceeds the Underwriters’ Maximum Numberoffering, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that Registration the number of Registrable Applicable Securities requested by that, in the Holders thereof to opinion of such managing underwriter or underwriters, can be included sold in such registration that does not exceed such Underwriters’ Maximum Numberoffering (provided that, such Registrable in the event of a joint Demand, the Applicable Securities to included shall be allocated pro rata among the Demanding Holders thereof on the basis of the relative number of Registrable Applicable Securities each such Demanding Holder has requested to be included therein by each in such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration).
(d) The Company may include in any Registration requested pursuant to Section 10.02(a) hereof other securities for sale for its own account or for the account of another Person, subject to the provisions of the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Holders, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, shares requested to be included in such underwritten offering by any securityholder of the Company other than the Holder (each an "Other Registering Stockholder") possessing contractual rights to have its shares included in such offering prior to the Applicable Securities, on the date hereof, (ii) second, the Applicable Securities requested to be registered by the Demanding Holder and (iii) third, any other securities requested to be included in such Registration. In the event that 20% or more of the Certificate Shares requested by the Holders to be included in such Demand initiated by the Holders are excluded therefrom and securities held by other security holders (other than the Holders) are included in such Demand, the Holders shall be entitled to exercise an additional Demand in accordance with this Section 10.02.
(e) A registration will not Demanding Holder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 10.02(b), or (iv) if such Demanding Holder is prevented pursuant to Section 10.02(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Holder shall nonetheless be deemed to have been effected as a (and, therefore, requested) for purposes of Section 10.02(a) hereof if such Demanding Holder withdraws any Demand Registration unless (A) pursuant to clause (i) of the Registration Statement relating preceding sentence after the Commission filing fee is paid with respect thereto has been declared effective by or (B) pursuant to clause (iv) of the SEC, preceding sentence in circumstances where at least 7550% of the Registrable Applicable Securities requested to be included in such Registration by such Demanding Holder could have been included, and in each case, (x) the Company has not availed itself of Section 10.02(b) with respect to such Registration request or (y) the Company has availed itself of Section 10.02(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 10.02(b). If a Demanding Holder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Holder shall be entitled to participate in such Registration pursuant to Section 10.03, but in such case the Intended Offering Notice shall be required to be given to such Demanding Holder at least five (5) consecutive Business Days immediately prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 consecutive Business Days immediately following after receipt of the request to withdraw Demand from such Demanding Holder and such Demanding Holder shall be required to give the Piggy-back Notice no later than three (3) consecutive Business Days immediately after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 10.02 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Holder, and the other co-lead underwriter shall be selected by such Demanding Holder and shall be reasonably acceptable to the Company, provided that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Applicable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (iiRegistration) of the proviso Demanding Holders, and shall be reasonably acceptable to Section 4.2(a)the Company. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyAny additional co-five (45) days after the commencement of the distribution managing underwriters shall be selected by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registrationCompany. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).37
Appears in 1 contract
Sources: Contingent Appreciation Certificate Agreement (Crown Media Holdings Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after following the Closing Date (and so many times as defined in may be required for the Merger Agreement)disposition of all Registrable Securities, each of TDR and the Initiating Holders of may give a majority of Registrable Securities shall have the right written request to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act (a “Demand Registration”) by delivering a of all or any portion of such Holder’s Registrable Securities, which written request therefor to the Company (i) specifying shall specify the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether registered and the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect each such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested shall be referred to register; provided, however, that (i) the Holders shall not make herein as a request for a “Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten OfferingRegistration”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, ; provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringthat, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of2.1(d), the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect any Demand Registration (w) with respect to Registrable Securities that are subject to transfer restrictions pursuant to the Subscription Agreement, (x) with respect to Registrable Securities that are held in escrow under the Escrow Agreement, (y) within 90 days after the effective date of a previous Registration Statement (or participate (asuch shorter period as the Company may determine in its sole discretion) more than two (2) Underwritten Offerings in any twelve (12) month periodpursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, actually sold at least 75% of the Registrable Securities requested to be included therein or (z) as provided in Section 2.1(f). Thereafter, the Company shall promptly, and in any event, within five (5) days after receiving such request, give written notice of the proposed registration to all other Holders and use its reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of:
(i) all Registrable Securities for which any Holder has requested registration under this Section 2.1;
(ii) all Registrable Securities held by any other Holder specified in a written request received by the Holders are Company within five (5) days after written notice regarding such registration from the Company is delivered; and
(iii) any Common Stock to be offered or sold by the Company; to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities to be so registered. At any time the Company is eligible for use of an Automatic Shelf Registration Statement, if specified in such notice for a Demand Registration, such registration shall occur on such form.
(b) At any time prior to the effective date of the Registration Statement relating to such Demand Registration, any requesting Holder may, upon notice to the Company, revoke their request in whole or in part with respect to the number of shares of Registrable Securities requested to be included in such registrationRegistration Statement.
(c) The Company shall be liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registration becomes effective.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless the Registration Statement relating thereto (A) has become effective under the Securities Act and (B) has remained continuously effective for a period of at least (x) 180 days (or such shorter period in which all Registrable Securities of the Company has complied Holders included in all material respects with its obligations under this Agreement such registration have actually been sold thereunder) or (y) with respect theretoto a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided, however, provided that such Registration Statement shall not be considered a Demand Registration if, after it has become such Registration Statement becomes effective, (i1) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (2) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registrationRegistration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance with Section 2.1(e) such that less than 66.67% of the Registrable Securities of the Holders sought to be included in such registration are included.
(e) The Company shall not include in any Demand Registration or Shelf Registration any securities that are not Registrable Securities without the prior written consent of the selling Holders. In circumstances not including If a Demand Registration involves a Public Offering and the events described lead managing underwriter advises the Company and the selling Holders that, in its view, the immediately two preceding sentences number of this Section 4.2(d), each Holder shares of Registrable Securities requested to be included in such registration (including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having a material and adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall be permitted voluntarily include in such registration, up to withdraw the Maximum Offering Size, first, all or any part of its Registrable Securities from requested to be registered by the Holders, based on the pro rata percentage of Registrable Securities held by such Holders (determined based on the aggregate number of Registrable Securities held by each such Holder) and second, any securities proposed to be registered by the Company.
(f) The Company may postpone for up to 60 days (i) the filing or effectiveness of a Registration Statement for a Demand Registration at any time prior to or Shelf Registration or (ii) the commencement of marketing a Shelf Public Offering if the Board of Directors of the Company determines in its reasonable good faith judgment that such Demand Registration, provided Shelf Registration or Shelf Public Offering, as applicable, (i) materially interferes with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) requires premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) renders the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such registration nonetheless event TDR or the Initiating Holders, as applicable, shall count as be entitled to withdraw such request and, if such request for a Demand Registration for purposes of clause (ii) is withdrawn, such Demand Registration shall not count as one of the proviso to Section 4.2(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, Shelf Registration or Shelf Public Offering hereunder only twice in any period of twelve (12) consecutive months.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after one (1) year anniversary of the Closing Date (as defined in the Merger Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a4.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 4.8 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a4.1(a). If (i) a registration requested pursuant to this Section 4.2 4.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 4.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 4.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).such
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereof, at At any time on or after commencing September 1, 1997 and expiring five (5) years from the date that is 180 days after the Closing Date (as defined in the Merger of this Subscription Agreement), the Holders of a majority of Registrable Securities undersigned shall have the right (which right is in addition to require the registration rights under Section VI(a) hereof), exercisable by written notice to the Company, to have the Company prepare and file with the Commission, on one occasion, a registration statement and such other documents, including a prospectus, as may be necessary in the opinion of counsel for the Company, in order to file a Registration Statement registering for sale all or part comply with the provisions of their respective Registrable Securities under the Securities Act (Act, so as to permit a “Demand Registration”) by delivering a written request therefor to public offering and sale of the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, Common Shares.
(ii) specifying whether If the intended method of disposition thereof is undersigned exercises its registration request, pursuant to an Underwritten Offering Section VI(b)(i) above, between September 1st and November 1st (as defined below), and (iiithe "Window Period") containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandany given year, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received costs and (y) use reasonable best efforts to effect filing fees incurred in connection with such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws the "Costs") shall be divided evenly between the undersigned and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerCompany; provided, however, that (i) the Holders Costs payable by the undersigned shall be capped at $25,000. If the undersigned exercises such registration request on a date outside of the Window Period, the Costs shall be divided evenly between the undersigned and the Company; provided, however, that the Costs payable by the undersigned shall be capped at $40,000. Costs shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price include any amounts payable to the undersigned's counsel, any transfer taxes or underwriting discounts, commissions or fees applicable to the Common Shares, which shall be payable solely by the undersigned. Notwithstanding the foregoing, if the registration statement to which the Costs are associated is, due solely to actions of less than $5,000,000the Company, (ii) not declared effective by the Holders will not be entitled to require Commission within six months from the date it is first filed with the Commission, then the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and shall pay all Costs associated with such registration statement.
(iii) In connection with any registration under Section VI(b) hereof, the Company will not be obligated covenants and agrees as follows:
a. The Company shall use its best efforts to effect more than one file a registration statement within sixty (160) Demand Registration in days of receipt of any six (6) month period.
(b) The offering demand therefor, except that if such demand is made during the Window Period, the Company shall use its best efforts to file a registration statement within 60 days of the Registrable Securities pursuant end of the Window Period, shall use its best efforts to have any registration statements declared effective at the earliest possible time, and shall furnish the undersigned such Demand Registration may number of prospectuses as shall reasonably be requested; provided, however, that the Company may, at any time, delay the filing or delay or suspend the effectiveness of such demand registration or, without suspending such effectiveness, instruct the undersigned not to sell any securities included in the form of an underwritten public offering (an “Underwritten Offering”). In such casedemand registration, (i) if the Company shall have determined upon the written advice of counsel (confirmation of which notice shall be provided to the undersigned in writing by such counsel) that the Company would be required to disclose any actions taken or proposed to be taken by the Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such actions, or (ii) if required by law, to update the prospectus relating to any such registration to include updated financial statements (a "Suspension Period") by providing the undersigned with written notice of such Suspension Period and the reasons therefor; and provided further, that the Suspension Periods, in the aggregate, do not exceed sixty (60) days. The Company shall provide such notice as soon as practicable and in any event prior to the commencement of such a Suspension Period. The obligations of the Company hereunder with respect to the Common Shares are expressly conditioned on the undersigned furnishing to the Company such appropriate information concerning the undersigned and the Common Shares as the Company may designate reasonably request.
b. The Company agrees that it will use its best efforts to maintain the managing underwriter(seffectiveness of any registration statement filed pursuant to Section VI(b) hereof for a period of 1 year from the Underwritten Offeringeffective date of such registration statement.
c. The Company will take all necessary action which may be required in qualifying or registering the Common Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the undersigned, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect execute or participate file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(aiv) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by Neither the underwriter(s) in any prior underwritten offering conducted filing of a registration statement by the Company on its own behalf or on behalf pursuant to this Section VI(b) nor the making of any request for prospectuses by the Holdersundersigned shall impose upon the undersigned any obligation to sell the Common Shares.
(cv) IfThe undersigned, in connection with an Underwritten Offering, the managing underwriter(s) advise upon receipt of notice from the Company that in its an event has occurred which requires a post-effective amendment to a registration statement or their reasonable opinion the number of securities proposed a supplement to be a prospectus included in such registration exceeds the Underwriters’ Maximum Numbertherein, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits promptly discontinue the sale of the Registrable Securities pursuant to Common Shares until the registrationundersigned receives a copy of a supplemented or amended prospectus from the Company, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then which the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in provide as soon as practicable after such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)notice.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after following the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the of this Agreement and upon written notice from a Holder or Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act at least twenty percent (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations20%) of the Registrable Securities that the Company has been so requested (without giving effect to register; provided, however, that (iany limitation on exercise or conversion) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate manner set forth in Section 11(h) hereof requesting that Company effect the registration under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in Securities Act of any six (6) month period.
(b) The offering or all of the Registrable Securities pursuant held by such Holder as described in Section 2(b) (which notice shall specify the intended method or methods of disposition of such Registrable Securities), Company shall use its reasonable best efforts to such Demand Registration may be effect, in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as manner set forth in Section 4.9 5, the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request; provided that:
(i) if, prior to receipt of a registration request pursuant to this Section 2(a), Company had commenced a financing plan and held or identified a date to hold a formal "all hands" meeting with outside advisors, including an underwriter if such financing plan is an underwritten offering, and, in the good faith business judgment of Company's underwriter (or outside advisors, if no underwriter), a registration at the time and on the terms requested could materially and adversely affect or interfere with such financing plan of Company or its subsidiaries (a "Transaction Blackout"), Company shall not be required to effect a registration pursuant to this Section 2(a) until the earliest of (A) the abandonment of such offering or (B) sixty (60) days after the termination of such offering; provided that Company shall only be permitted to delay a requested registration under this Section 2(a), whether in reliance on this subsection (i) or on subsection (ii) below, twice during the term of this Agreement.
(ii) if, while a registration request is pending pursuant to this Section 2(a), Company has determined in good faith that (A) the filing of a registration statement could jeopardize or delay any contemplated material transaction other than a financing plan involving Company or would require the disclosure of material information that Company had a bona fide business purpose for preserving as confidential; providedor (B) Company then is unable to comply with SEC requirements applicable to the requested registration (notwithstanding its reasonable best efforts to so comply), Company shall not be required to effect a registration pursuant to this Section 2(a) until the earlier of (A) the date upon which such contemplated transaction is completed or abandoned or such material information is otherwise disclosed to the public or ceases to be material or Company reasonably is able to so comply with applicable SEC requirements, as the case may be, and (B) thirty (30) days after Company makes such good-faith determination; provided that Company shall only be permitted to delay a requested registration under this Section 2(a), whether in reliance on this subsection (ii) or on subsection (i) above, twice during the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit term of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and this Agreement.
(iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) file more than two (2) Underwritten Offerings registration statements under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in event if such a registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that request is for a number of Registrable Securities requested by the Holders thereof to which have an aggregate market value less than $1 million. If such a request shall be included in such registration that does not exceed such Underwriters’ Maximum Numberfor an underwritten offering, such Registrable Securities to a request must be allocated pro rata among the Holders thereof on the basis of the for a number of Registrable Securities requested to be included therein by each such Holder. No shares which have an aggregate market value of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiesat least $5 million.
(db) A Notwithstanding any other provision of this Agreement to the contrary, a registration will requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the SECrequesting Holder based upon material adverse information relating to Company that is (x) different from the information known to the Holder or Holders requesting registration at the time of their request for registration, or (y) promptly disclosed by Company to the Holder at least 75% the time of their request for registration; (B) if, when effective, it includes fewer than ninety (90%) percent of the number of shares of Registrable Securities requested to be included in which were the registration by subject matter of the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretorequest; provided, however, that if, (C) if after it has become effective, (i) effective such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agencycourt for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, less than ninety (90%) percent of the Registrable Securities requested to be registered can be completely distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, Company shall have the right to designate the underwriter or underwriters, including the lead managing underwriter of such underwritten offering, subject to the reasonable approval of the Holders.
(d) Holders other than the Holder initiating the demand pursuant to Section 2(a) and holders of other registrable securities with the right to participate in a Company registration statement shall have the right to include their shares of Registrable Securities or other registrable securities, as the case may be, in any registration pursuant to Section 2(a). In connection with those registrations in which multiple Holders or holders of other registrable securities with the right to participate in such registration ("Piggy-back Rights Holders") participate, in the event the facilitating broker/dealer or, in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the number of shares to be sold, the number of shares to be included in the sale or underwriting and registration shall be allocated pro rata among the Holders and the holders seeking registration pursuant to piggy-back registration rights otherwise granted by Company on the basis of the estimated proceeds from the sale of the securities covered by such registration.
(e) Company shall have the right to cause the registration of additional securities for sale for the account of Company in any registration of Registrable Securities requested by a Holder pursuant to Section 2(a) which involves an underwritten offering; provided that Company shall not have the right to cause the registration of such additional securities if any court prevents or otherwise limits such Holder is advised in writing (with a copy to Company) by the lead managing underwriter designated pursuant to Section 2(c) that, in such firm's good faith opinion, registration of such securities in addition to those securities included pursuant to Sections 2(a)-(d) hereof would materially adversely affect the offering and sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered contemplated by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Kronos Advanced Technologies Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying Request for Registration. Upon the number written request of one or more Holders of not less than 20% of the Registrable Securities to be included in (calculated on an as-converted basis) (the "Requesting Holders") that the Company effect the registration of all or a part of such registration by such Holder or Holders, ' Registrable Securities (ii) specifying whether which request shall specify the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandRegistrable Securities) (a "Demand Registration"), the Company shall will:
(x1) promptly notify give written notice of the proposed registration to all Holders from whom the request for registration has not been received and other Holders; and
(y2) as soon as reasonably possible, use its reasonable best efforts to effect such registration (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 Act) as may be so requested and any other governmental requirements as would permit or regulationsfacilitate the sale and distribution (in accordance with the intended methods as aforesaid) of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request as are specified in a written request received by the Company within 15 days after written notice from the Company is given under Section 2(a)(i)(1) above; provided that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under be obligated to effect, or take any action to effect, any such registration pursuant to this Section 4.2(a2(a):
(A) for Registrable Securities having an If such registration is prohibited by applicable law;
(B) For a period of 30 days before the anticipated aggregate consummation of a public offering price of less than $5,000,000, (ii) the Holders will not be entitled to require by the Company of its equity securities and 90 days subsequent to effect more than the consummation of such public offering;
(C) In any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder;
(D) After the Company has effected three (3) Demand Registrations in pursuant to this Section 2(a) and such registrations have been declared or ordered effective and the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.sales of such Registrable Securities shall have closed;
(bE) The offering If the Registrable Securities requested by all Holders to be registered pursuant to such request do not constitute at least 20% of the Registrable Securities (calculated on an as-converted basis);
(F) Within 90 days after the effective date of a previous Demand Registration or a previous registration under which the Requesting Holders had piggyback rights pursuant to such Demand Registration may be in Section 2(b) hereof wherein the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Requesting Holders may designate a co-managing underwriter were permitted to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties byregister, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECsold, at least 7550% of the Registrable Securities requested to be included therein;
(G) If the Company shall furnish to the Requesting Holders a certificate signed by the President of the Company stating that in the registration by good faith judgment of the Holders are included Board of Directors it would be in such registration, and the best interests of the Company has complied in all to defer such Demand Registration because such registration would jeopardize any other material respects with its obligations under this Agreement with respect theretocorporate transaction of the Company or would require the disclosure of material non-public information, then the Company shall have the right to defer filing a registration statement for such Demand Registration for a period not to exceed sixty (60) days from the date of receipt of written request from the Requesting Holders; provided, however, that ifthe Company shall not exercise such right more than once in any (12) twelve-month period. The registration rights set forth in this Section 2 may be assigned, after it has become effectivein whole or in part, (i) such Registration Statement or the related offer, sale or distribution to any transferee of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than (who shall be bound by all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences obligations of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aAgreement).
Appears in 1 contract
Demand Registration. (a) Subject to If the provisions hereofIssuer shall receive a written request by the DLJ Entities, at any time Chase, Summit on behalf of the Summit-Investors or after the date that is 180 days after the Closing Date Wind▇ ▇▇▇▇ ▇▇▇estors (as defined provided in Section 5.13) (any such requesting Person, a "SELLING SHAREHOLDER") that the Merger Agreement), Issuer effect the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Shareholder's shares of Common Stock, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, following the earlier to occur of (i) October 5, 1999 or (ii) an Underwritten Offering (as defined below)Initial Public Offering, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after then the receipt Issuer shall promptly give written notice of such demand, requested registration (a "DEMAND REGISTRATION") at least 30 days prior to the Company shall (x) promptly notify all Holders from whom anticipated filing date of the request for registration has not been received statement relating to such Demand Registration to the other Shareholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act of:
(A) the Registrable Securities which the Issuer has been so requested to register by the Selling Shareholders, then held by the Selling Shareholders; and (B) subject to the cut back provisions set forth in Section 5.2, all other Registrable Securities of the same type (it being understood that voting and non-voting common stock will be considered the same type) as that to which the request by the Selling Shareholders relates which any other governmental requirements or regulationsShareholder entitled to request the Issuer to effect an Incidental Registration (as such term is defined in Section 5.2) pursuant to Section 5.2 (all such Shareholders, together with the Selling Shareholders, the "HOLDERS") has requested the Issuer to register by written request received by the Issuer within 15 days after the receipt by such Holders of such written notice given by the Issuer, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities that the Company has been so requested to registerbe registered; providedprovided that, however, that (isubject to Section 5.1(c) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000hereof, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iiiI) the Company will shall not be obligated to effect more than one three Demand Registrations for the Summit-Investors collectively, three Demand Registrations for the DLJ Entities collectively, three Demand Registrations for the Wind▇ ▇▇▇▇ ▇▇▇estors collectively, or three Demand Registrations for Chase pursuant to this Section 5.1, and (1II) in addition to the foregoing rights, following the Short-Form Date, the number of Short-Form Demand Registrations for the DLJ Entities, Chase, the Summit-Investors and the Wind▇ ▇▇▇▇ ▇▇▇estors pursuant to this Section 5.1 shall be unlimited; and provided further that the Issuer shall not be obligated to effect a Demand Registration with respect to Common Stock unless the aggregate proceeds expected to be received from the sale of the Common Stock requested to be included in such Demand Registration equal at least (x) if such Demand Registration would constitute an Initial Public Offering, $50,000,000, or (y) in any six (6) other Public Offering, $20,000,000. In no event will the Issuer be required to effect more than one Demand Registration within any 6 month period.
(b) The offering of the Registrable Securities pursuant to such Issuer will pay all Registration Expenses in connection with any Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersRegistration.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested pursuant to this Section 5.1 shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section 5.1 becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale and (y) less than 75% of the Registrable Securities pursuant to the registration, and included in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will statement has been sold thereunder, such registration statement shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as considered a Demand Registration or (ii) if the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.1(d) such that less than 66 2/3% of the Registrable Securities of the Selling Shareholders sought to be included in such registration are included.
(d) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Issuer and the Selling Shareholders that, in its view, (i) the number of shares of Common Stock or Warrants requested to be included in such registration (including Common Stock or Warrants which the Issuer proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Common Stock or Warrants owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such Shares can be sold (the "MAXIMUM OFFERING SIZE"), the Issuer will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by any Selling Shareholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Selling Shareholders on the basis of the relative number of Registrable Securities so requested to be included in such registration); (B) second, all Registrable Securities requested to be included in such registration by any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such other Holders on the basis of the relative number of Registrable Securities so requested to be included in such registration); and (C) third, any Common Stock proposed to be registered by the Issuer.
(e) Upon written notice to each Selling Shareholder, the Issuer may postpone effecting a registration pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement 5.1 on one occasion during any period of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect six consecutive months for a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described reasonable time specified in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause notice but not exceeding 90 days (ii) of the proviso to Section 4.2(a).which
Appears in 1 contract
Sources: Investors' Agreement (Doane Pet Care Enterprises Inc)
Demand Registration. (a) Subject At any time from and after 180 days following the Effective Date and subject to the provisions Sections 2(c) and 2(d) hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders receipt of a majority of Registrable Securities shall have written request from a Holder (the right to require "INITIATING DEMAND HOLDER") requesting that the Company to file effect a Registration Statement registering for sale registration (a "DEMAND REGISTRATION") under the Securities Act covering all or part of their respective the Registrable Securities held by such Holder, which specifies the intended method or methods of disposition thereof, the Company shall promptly notify all Holders in writing of the receipt of such request and each such Holder, in lieu of exercising its rights under the Securities Act Section 3 hereof, may elect (a “Demand Registration”) by delivering a written request therefor notice sent to the Company within twenty (i20) specifying days from the date of such Holder's receipt of the aforementioned Company's notice) to have all or part of such Holder's Registrable Securities included in such registration thereof pursuant to this Section 2, and such Holder shall specify in such notice the number of Registrable Securities that such Holder elects to include in such registration. Thereupon the Company shall, as expeditiously as is reasonably possible, file with the SEC and use commercially reasonable efforts to cause to be included in such declared effective, a registration by such Holder or Holders, statement (iia "DEMAND REGISTRATION STATEMENT") specifying whether the intended method of disposition thereof is pursuant relating (subject to an Underwritten Offering (as defined below), and (iiiSection 2(b) containing hereof) to all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that which the Company has been so requested to register; register by such Holders ("PARTICIPATING DEMAND HOLDERS") for sale, to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered, provided, however, that the aggregate number of Registrable Securities requested to be registered by all Participating Demand Holders shall be, subject to Section 2(b) below, at least the greater of (a) five percent (5%) of the Class A Stock issued and outstanding on the Effective Date, calculated on an As Converted Basis (as defined in the Certificate of Incorporation) as of the date of the Demand Registration Statement, and (b) an aggregate value of $100,000,000, based on the closing trading price of the Class A Stock on the date the demand to file such Demand Registration Statement is made.
(b) If the Initiating Demand Holder so requests that the offering be underwritten with a managing underwriter (which shall be selected in the manner set forth in Section 12 below) and such managing underwriter of such Demand Registration advises the Company in writing that, in its opinion, the number of Securities to be included in such offering is greater than the total number of Securities which can be sold therein without having a material adverse effect on the distribution of such Securities or otherwise having a material adverse effect on the marketability thereof (the "MAXIMUM NUMBER OF SECURITIES"), then the Company shall include in such Demand Registration the Registrable Securities that the Participating Demand Holders have requested to be registered thereunder only to the extent the number of such Registrable Securities does not exceed the Maximum Number of Securities. The Company shall include such Registrable Securities in a Demand Registration even if the Maximum Number of Securities is less than the threshold set forth in Section 2(a) above. If such amount exceeds the Maximum Number of Securities, the number of Registrable Securities included in such Demand Registration shall be allocated among all the Participating Demand Holders on a pro rata basis, unless any of the Participating Demand Holders otherwise agree between or among themselves and notifies the Company in writing of such agreement. If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Registration any other Securities of the Company, and then other Securities held by other security holders of the Company, on a pro rata basis if necessary, in an amount which together with the Registrable Securities included in such Demand Registration shall not exceed the Maximum Number of Securities.
(c) The Shareholders together with all Holders who are assignees or transferees of the Shareholders, or assignees or transferees of an assignee or transferee of the Shareholders shall collectively be entitled to sixteen (16) registrations of Registrable Securities pursuant to this Section 2. Each Shelf Registration pursuant to Section 4 hereof shall be deemed one Demand Registration pursuant hereto.
(d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration Statement under this Agreement in any six (6) six-month period, or (ii) any Demand Registration Statement within ninety (90) days following the date of effectiveness of any Registration Statement (other than a Shelf Registration Statement).
(be) The offering of the Registrable Securities A Demand Registration requested pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (iSection 2(a) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval hereof shall not be unreasonably withheld or delayed deemed to have been effected with respect to any Participating Demand Holder that is not able to register and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit sell at least 80% of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each on behalf of such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included Holder in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessuch registration.
(df) A registration will not be deemed to have been effected as a Participating Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with Holder may withdraw its obligations under this Agreement request with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement effective date of marketing the Demand Registration Statement relating thereto by providing to the Company written notice. Upon any such withdrawal, if the Company determines not to otherwise continue with such Registration Statement for the purpose of registering Class A Stock of the Company, another Holder or another shareholder of the Company, the withdrawing Participating Demand Holder shall be obligated, pro rata with any other withdrawing Participating Demand Holder, to reimburse the Company, within 20 days of the date of the written notice of withdrawal, for all Expenses (as defined in Section 12 below) incurred by the Company, in connection with such withdrawn Demand Registration that would not otherwise have been incurred by the Company. Any such withdrawn Demand Registration shall be counted with respect to such Holder for purposes of Section 2(c) hereof as a completed Demand Registration, provided unless such withdrawal was the result of a change in market conditions that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) would materially adversely effect the amount and/or price of the proviso Registrable Securities to Section 4.2(a)be included in the Demand Registration.
Appears in 1 contract
Demand Registration. (a) Subject to From and after the provisions hereof, at any time on or after earlier of the date that is 180 days one calendar year after the Closing Date date hereof, after receipt of a written request from the Holders owning 50% of the Registrable Securities of each class requesting that the Company effect the registration of all or a portion of the Registrable Securities and specifying the intended method or methods of disposition thereof (as defined in the Merger Agreementa "Holder Notice"), the Holders of a majority of Registrable Securities shall have Company shall, as expeditiously as is possible, use its reasonable commercial efforts to effect the right to require the Company to file a Registration Statement registering registration for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of all shares of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that which the Company has been so requested to registerregister by such Holders, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of such Registrable Securities so registered; providedPROVIDED, howeverHOWEVER, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration in registration of any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in this Section 2(a) except as otherwise expressly provided herein. If the form managing underwriter of an underwritten a proposed public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in writing that, in its or their reasonable opinion opinion, the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Company or such other registering security holders would materially and adversely affect the distribution of such securities by the Company or such registering security holders, then the Company may require all selling security holders (other than the Company) to reduce the amount of securities each intended to distribute through such offering on a pro rata basis; PROVIDED, HOWEVER, that if the Company requires such reduction, and if Holders requesting such registration pursuant to this Section 2(a) are unable to include in such registration Registable Securities that they requested be included in such registrationregistration in the related Holder Notice that constitute Substantial Market Value Securities, due to such pro rata reduction (the Registrable Securities that such Holder so requested to be included in such registration that were not included in such registration due to such pro rata reduction being referred to herein as the "Reduction Shares", and the registration in which such reduction occurred being referred to herein as a "Failed Registration"), then subject to the other provisions hereof applicable to a demand registration the Holders of the Reduction Shares shall have the right, exercisable commencing on the day that is two calendar months after the termination of the Registration Period relating to the Failed Registration by written notice sent to the Company has complied in all material respects with its obligations under by Holders of 50% of the Reduction Shares (a "Repurchase/Register Notice"), to require the Company to elect (at the Company's option) to either register the Reduction Shares otherwise pursuant to this Agreement with respect thereto; providedSection 2(a) or, howeverif the foregoing offer to sell or resulting sale is then lawful, that if, after it has become effective, to repurchase the Reduction Shares at the higher of (i) such Registration Statement or the related offer, sale or distribution of price per share for which Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are were actually sold by in the selling Holder or Holders pursuant to the Registration StatementFailed Registration, or (ii) if, in the case of an Underwritten Offering, Market Price on the date the Repurchase/Register Notice is sent to the Company fails to provide Full Cooperationin compliance with this Agreement; PROVIDED, then such registration will HOWEVER, that the Holders shall not be deemed not hereby or thereby to have been effected for purposes of clause (ii) of made any offer to sell to the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 Company that does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then comply with applicable law and the Company shall continue not be entitled or deemed to be obligated entitled to effect a Demand Registration pursuant repurchase such Reduction Shares or to this Section 4.2 of be offered the Registrable Securities included in right to or solicit the right to repurchase such registration. In circumstances not including Reduction Shares or deemed to have bid for such Reduction Shares hereby or thereby if such repurchase, offer, or bid would violate any applicable securities law; and PROVIDED FURTHER, HOWEVER, that any such repurchase shall occur at such time within three calendar months after the events described in date that the immediately two preceding sentences Company receives the related Repurchase/Register Notice subject to the other provisions of this Section 4.2(d2(a), and otherwise at such time and place as the Company may determine, and each Holder of Registrable Securities the parties hereto agrees to execute and deliver such agreements, instruments, and other documents, and to take such other actions, as may be necessary or desirable to effect any such repurchase in compliance with all applicable laws. The Company shall respond to such Repurchase/Register Notice by written notice to the Purchaser within 30 business days after its receipt of the Repurchase/Register Notice (an "Election Notice"), which Election Notice shall set forth whether the Company desires to so register such Reduction Shares or to repurchase such Reduction Shares; PROVIDED, HOWEVER, that the Company shall be permitted voluntarily deemed to withdraw all or any part have elected to register such Reduction Shares if it does not give such notice within such 30 business day period. If the Company so elects to repurchase such Reduction Shares, and if the Market Price requires an agreement of its Registrable Securities from a Demand Registration at any time prior the Company and such holders as to the commencement of marketing fair market value of such Demand RegistrationReduction Shares, provided that the consummation of such registration nonetheless repurchase shall count not be required to be consummated until as a Demand Registration for purposes soon as practicable after such fair market value has been determined as set forth in the definition of clause (ii) of the proviso to Section 4.2(a)Market Price set forth herein.
Appears in 1 contract
Sources: Registration Rights Agreement (Crown Northcorp Inc)
Demand Registration. (a) Subject At any time following the expiration of the Relevant Restricted Period, if the Company is unable to file, cause to be effective or maintain the effectiveness of a Shelf Registration Statement as required under Section 3.1 hereof, subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined restrictions set forth in the Merger Agreement)Section 2.2, the Holders of a majority of Registrable Securities Investor shall have the right right, by delivering a written notice to the Company (a “Demand Notice”), to require the Company to file a Registration Statement registering for sale all or part register under and in accordance with the provisions of their respective Registrable Securities under the Securities Act the number of Registrable Securities Beneficially Owned by the Investor and requested by such Demand Notice to be so registered (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders Company shall not make a request for be required to effect a Demand Registration under pursuant to this Section 4.2(a3.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000after the Company has effected two (2) Demand Registrations pursuant to this Section 3.2(a); and provided, (ii) further, that the Holders will Investor shall not be entitled to require deliver to the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) 12-month period.
(b) The offering period and, in any event, a Demand Notice may only be made if the sale of the Registrable Securities pursuant requested to such be registered by the Investor includes at least 25% of the shares of Company Common Stock into which the originally issued shares of the Preferred Stock (which, for the avoidance of doubt, shall include all of the shares of Preferred Stock that were issued to the Investor and LNK under the Purchase Agreements) may be converted or is reasonably expected to result in aggregate gross cash proceeds in excess of $50,000,000 (without regard to any underwriting discount or commission). For all purposes under this Section 3.2(a), any Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished delivered to the Company by LNK under the LNK Stockholders Agreement shall be considered to be a Demand Registration delivered under this Section 3.2(a) and a Joint Demand Registration shall be deemed to be a single Demand Registration under this Section 3.2(a). A Demand Notice shall also specify the expected method or on behalf methods of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the applicable Registrable Securities disposed Securities. Following receipt of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on a Demand Notice, the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall use commercially reasonable efforts to file, as promptly as reasonably practicable, but not be obligated to effect or participate (a) more later than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted 30 days after receipt by the Company on its own behalf or on behalf of such Demand Notice, a Registration Statement relating to the offer and sale of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each the Investor in accordance with the methods of distribution elected by the Investor (a “Demand Registration Statement”) and shall use commercially reasonable efforts to cause such Holder. No shares Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
(b) If any of Common Stock held by any Person other than the Registrable Securities held registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter(s) of such underwritten offering advise the Investor in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the Holders total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:
(i) first, the Registrable Securities for which inclusion in such underwritten offering was requested by the Investor; and
(ii) second, among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities.
(c) In the event of a Demand Registration, the Company shall be required to maintain the continuous effectiveness of the applicable Registration Statement for a period of at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold.
(d) The Investor (or in the case of a Joint Demand Registration, the Joint Representative) shall have the right to notify the Company that it has determined that the Registration Statement relating to a Demand Registration without or a Joint Demand Registration, as the case may be, be abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such Registration Statement or Joint Demand Registration; provided, however, that the Company shall not be required to pay for expenses of any registration proceeding begun pursuant to Section 3.2(a) hereof, which has been subsequently withdrawn pursuant to this Section 3.2(d) at the request of the Investor (or in the case of a Joint Demand Registration, the Joint Representative), and shall be reimbursed by the Investor (or in the event of a Joint Demand Registration by the Investor and LNK on a pro rata basis) for reasonable and documented out-of-pocket expenses (including legal fees and printing expenses) so incurred, unless the withdrawal is based upon material adverse information concerning the Company that the Company had not publicly disclosed at least two (2) Business Days prior to the Company’s receipt of such Demand Notice.
(e) Subject to Section 3.4, with the prior written consent of the holders of a majority in interest of the Registrable Securities.
Investor (d) A registration will which consent shall not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECunreasonably withheld, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement conditioned or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringdelayed), the Company fails shall be entitled to provide Full Cooperation, then such registration will coordinate any offerings under this Section 3.2 with any offerings to be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand similar agreements with the holders of Other Securities, including, if practicable, by filing one Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw Statement for all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Other Securities.
Appears in 1 contract
Sources: Stockholder Agreement (Phillips Van Heusen Corp /De/)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Initial Closing Date (as defined in the Merger Agreement)Date, the Holders Purchaser and any assignee of the Purchaser pursuant to Section 10.6 of this Agreement (each a majority of Registrable Securities “Holder”) shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Conversion Shares held by or issuable to them (including Conversion Shares that may be issued in respect of PIK Interest) (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)Offering, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all any Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a8.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company Holders of a majority of the Registrable Securities to be sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed Offering and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration and that does not exceed such Underwriters’ Maximum NumberNumber prior to the inclusion of other securities that have been requested to be so included by any other person, and such Registrable Securities to shall be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperationfull cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a8.1(a). If (i) a registration requested pursuant to this Section 4.2 8.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 8.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 8.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d8.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a8.1(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after following the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Effectiveness Period, the Holders holders of a majority Restricted Stock constituting at least 25% of Registrable Securities shall have the right to require Restricted Stock outstanding at such time may request the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities register under the Securities Act (a “Demand Registration”) all or any portion of the Restricted Stock held by delivering a written request therefor to such requesting holder or holders for sale in the Company (i) specifying the number of Registrable Securities to be included manner specified in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawnotice. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts have no obligation to effect such a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated 5 unless the aggregate offering price of less the securities requested to be sold pursuant to such registration is, in the good faith judgment of the Company, expected to be equal to or greater than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period7.5 million.
(b) The offering Promptly following receipt of any notice under this Section 5, the Registrable Company shall immediately give written notice to any holders of Restricted Stock from whom notice has not been received, and shall file and use its reasonable efforts to have declared effective a registration statement under the Securities pursuant to Act, for public sale in accordance with the method of disposition specified in such Demand Registration may notice from such requesting holders the number of shares of Restricted Stock specified in such notice (and in any notices received from other such holders of Restricted Stock within 20 days after their receipt of such notice from the Company). If such method of disposition shall be in the form of an underwritten public offering (an “Underwritten Offering”). In such caseoffering, (i) the Company may designate the managing underwriter(s) underwriter of the Underwritten Offering, provided that such Holders may designate offering which shall be a co-managing underwriter to participate in the Underwritten Offeringfirm of recognized national standing, subject to the approval of the Companyselling holders of a majority of the Restricted Stock included in the offering, which approval shall not be unreasonably withheld or delayed withheld. The number of shares of Restricted Stock to be included in such an underwriting may be reduced (pro rata among all of the requesting holders based on the number of shares requested by each holder to be included) if and (ii) to the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities to be sold therein. Notwithstanding anything to the contrary contained herein, the obligation of the Company under this Section 5 shall (together be deemed satisfied only when a registration statement covering all shares of Restricted Stock specified in notices received as aforesaid, for sale in accordance with the Holders proposing to distribute their securities through method of disposition specified by the requesting holder, shall have become effective and, if such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for method of disposition is a firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through underwritten public offering, all such Underwritten Offering, which underwriting agreement shares shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder been sold pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersthereto.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise Each of the Company that in its or their reasonable opinion and holders of Common Stock other than the number of securities proposed to Restricted Stock, shall be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required entitled to include in such Underwritten Offering only that number any registration statement referred to in this Section 5 for which the method of Registrable Securities requested distribution is an underwritten public offering, for sale in accordance with the method of disposition specified by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numberrequesting holders, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held to be sold by the Holders shall be included Company for its own account, or such other stockholders, as the case may be, except to the extent that, in a Demand Registration without the prior written consent opinion of the holders managing underwriter, such inclusion would adversely affect the marketing of the Restricted Stock to be sold. Except as provided in this paragraph (c) or pursuant to the Company's Second and Amended Restated Registration Rights Agreement dated April 20, 1999, as amended through the date hereof and as it may be amended to reflect the registration rights contemplated by the Agreement to Sublease (the "Second Amended and Restated Agreement") or as it may be amended solely to add additional parties, the Company will not effect any other registration of its Common Stock, whether for its own account or that of other holders, from the date of receipt of a majority in interest notice from requesting holders pursuant to this Section 5 until the completion of the Registrable Securitiesperiod of distribution of the registration contemplated thereby.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Notwithstanding anything to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringcontrary contained herein, the Company fails shall be obligated to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested register Restricted Stock pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)5 on one occasion only.
Appears in 1 contract
Sources: Registration Rights Agreement (Spectrasite Holdings Inc)
Demand Registration. (ai) Subject to the provisions hereof, at any time on or after the date The Stockholder(s) may request that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale effect the registration of all or part of their respective the Registrable Securities under owned by the Securities Act (a “Demand Registration”Stockholder(s) by delivering a written request therefor notice to the Company (isigned by the requesting Stockholder(s) specifying requesting such registration and describing the number intended manner and timing of the sale of such Registrable Securities to be included in reasonable detail: provided that no Stockholder may make such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell if its Registrable Securities on are then included in the basis provided in such underwriting agreement Shelf Registration, and completes and executes all questionnairesprovided, powers of attorneyfurther, indemnities and other documents reasonably required under that the terms of such underwriting agreement. The Company shall Stockholder(s) may not be obligated to effect or participate (a) make more than two (2) Underwritten Offerings such requests in the aggregate and no such request may be made within nine (9) months of any other request.
(ii) Upon receipt of any request pursuant to Section 4(a)(i) hereof, the Company will notify each Stockholder who did not sign the request described in Section 4(a)(i) hereof and each such other Stockholder shall be entitled to join in the request by providing written notice thereof to the Company within ten (10) days after the delivery of such notice by the Company.
(iii) Subject to the provisions of Section 6(b) hereof, the Company shall use its commercially reasonable efforts to file, as expeditiously as possible, but in any twelve event no later than seventy-five (1275) month perioddays after the delivery of the request to the Company pursuant to Section 4(a)(i) hereof, a Registration Statement on an appropriate Form covering all Registrable Securities so requested to be included therein (the "Demand Registration"), provided that the Company shall have no obligation to file any such registration statement if the then market value of the Registrable Securities to be included therein is less than $500,000 in the aggregate.
(iv) Subject to the provisions of Section 6(b) hereof, the Company agrees to use its commercially reasonable efforts to (A) cause the Registration Statement relating to the Demand Registration to become effective as promptly as practicable, and (by) in any Underwritten Offering during any lock-up period required by subject to the underwriter(ssecond sentence of Section 5(b) in any prior underwritten offering conducted by the Company on its own behalf or on behalf hereof and clauses (2) and (3) of the Holderslast sentence of Section 6(b) hereof, keep such Registration Statement effective for the period (the "Demand Registration Period") ending in the earlier of sixty (60) days and the date on which all Registrable Securities covered by such Registration Statement have been sold and the distribution contemplated thereby has been completed.
(cv) If, The Company and any Other Holder may include securities in connection with an Underwritten Offeringthe Demand Registration effected pursuant to this Section 4(a); provided, the managing underwriter(sStockholder(s) advise shall have priority sale rights over the Company that in its or their reasonable opinion the number of securities proposed and such Other Holders with respect to all Registrable Securities requested by them to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Internet Commerce Corp)
Demand Registration. (a) Subject to the provisions hereof, at any time on or On and after the date that is 180 days after end of the Closing Date (as defined in the Merger Agreement)Earn Out Period, the Holders of Stockholders’ Representative may in his sole and absolute discretion request in a majority of Registrable Securities shall have the right to require written notice that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (or a “Demand Registration”) by delivering a written request therefor similar document pursuant to any other statute then in effect corresponding to the Company (iSecurities Act) specifying covering the number registration of any or all Registrable Securities to Stock held by the Stockholders; provided, that there must be included in such registration Registrable Stock having a minimum value of Ten Million Dollars ($10,000,000) (based on the then current market price of such Registrable Stock) or such lesser amount if it constitutes all of the Registrable Stock held by such Holder Shareholders participating in the registration (the “ Registration Threshold ”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or Holderssuch lesser amount if it constitutes all of the Registrable Stock held by such Shareholders participating in the registration, but in no event less than a minimum value of Five Million Dollars (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below$5,000,000), and if the Company is not eligible to register the sale or other disposition of Registrable Securities on Form S-3 (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawor a successor form). As soon as practicable after the Following receipt of such demandany notice under this Section 5.1, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be registered under the Securities Act and any other governmental requirements or regulations) of the all Registrable Securities Stock that the Company has been so Stockholders have requested be registered in a manner of disposition reasonably acceptable to register; providedthe Company, howeverincluding but not limited to, that an offering on a delayed or continuous basis pursuant to Rule 415 (ior any successor rule) under the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodAct.
(b) The offering of If the Company intends to have the Registrable Securities pursuant to such Demand Registration may be in the form Stock distributed by means of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval Stockholders shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the underwriter or underwriters. If any Stockholder who intends to sell Registrable Securities in the offering disapproves of the terms of the underwriting, such Stockholder may elect to withdraw all its Registrable Stock from the registration by written notice to the Company and the managing underwriter(sunderwriter. The underwriters shall be selected by the Company in its sole discretion.
(c) proposing Notwithstanding any provision of this Agreement to distribute their the contrary,
(i) the Company shall not be required to effect a registration pursuant to this Section 5.1 during the period starting with the date of filing by the Company of, and ending on a date 120 days following the effective date of, a registration statement pertaining to a public offering of securities through such Underwritten Offeringfor the account of the Company or on behalf of the selling stockholders under any other registration rights agreement which the Stockholders have been entitled to join pursuant to Section 5.2;
(ii) if the Board determines in good faith that it is in the best interests of the Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition, which underwriting agreement shall have indemnification provisions in substantially disposition, strategic alliance or financing transaction or other potential material event involving the form as Company or (B) to suspend the registration rights set forth in herein, the Company may (1) postpone the filing of any registration pursuant to this Section 4.9 5.1 and (2) suspend the rights of this Agreementany Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that (i) such periods of postponement and suspension may not exceed 120 days in the representations aggregate during any period of 12 consecutive months; and warranties by, and each Stockholder agrees in consideration of the other agreements obligations of the Company set forth herein to maintain any communication by the Company with respect to the postponement or suspension of the any registration pursuant to this Section 5.1 in confidence such that the Company may rely on the part ofsafe harbor provisions of Rule 100(b)(2)(ii) of Regulation FD under the Exchange Act with respect to such communications; provided, further, that in the event the Company shall give such notice, the Company to and for shall extend the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder period during which such registration statement shall be required to make any representations and warranties to, or agreements with, any underwriter maintained effective as provided in a Section 5.3(a) by the number of days by which the Company suspends such registration other than customary representations, warranties and agreements and statement; and
(iii) the liability of each Holder Company shall not be required to effect a registration pursuant to this Section 5.1 more than one time in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) twelve-month period and shall not be limited obligated to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made cause any audit to be undertaken in such Registration Statement, connection with any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to registration that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall is not otherwise required to undertake at that time in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell connection with its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required obligations under the terms of such underwriting agreement. Securities Act, the Exchange Act and the rules and regulations thereunder.
(d) The Company shall not be obligated to effect or participate (a) and pay for more than two (2) Underwritten Offerings in any twelve (12) month periodthree registrations pursuant to this Section 5.1; provided, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed a registration requested pursuant to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company this Section 5.1 shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration for purposes of this Section 5.1(d) unless the Registration Statement relating thereto (i) it has been declared effective by the SECCommission, at least 75% of (ii) it has remained effective for the Registrable Securities requested to be included period set forth in the registration by the Holders are included in such registrationSection 5.3(a), and (iii) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder Stock pursuant to such registration is or becomes the not subject of to any stop order, injunction or other order or requirement of the SEC or Commission (other than any other governmental or administrative agencysuch stop order, injunction, or if any court prevents or otherwise limits the sale other requirement of the Registrable Securities pursuant to the registration, and in each case less than all Commission prompted by any act or omission of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder holders of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aStock).
Appears in 1 contract
Demand Registration. (ai) Subject to the provisions hereof, at At any time on or after the date that is 180 and from time to time commencing one hundred and eighty (180) days after the Closing Date consummation of an Initial Public Offering upon written notice to the Corporation (as defined in a “Demand Notice”) delivered by a Qualified Holder or Qualified Holders requesting that the Merger Agreement), Corporation effect the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act registration (a “Demand Registration”) by delivering under the Securities Act (other than pursuant to a written request therefor to Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Company (iSecurities Act) specifying of any or all of the number of Registrable Securities to be included in such registration held by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowQualified Holder(s), and the Corporation shall promptly (iiibut in any event, not later than five (5) containing all information about Business Days following the Corporation’s receipt of such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after Demand Notice) give written notice of the receipt of such demandDemand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Corporation shall use its commercially reasonable efforts to, within forty-five (45) days following the receipt of such Demand Notice (subject to compliance with any applicable covenants in any underwriting agreement for a previous registration effected under this Section 6(a) or under Section 6(b)), file the appropriate Registration Statement (the “Demand Registration Statement”) subject to Section 6(a)(ii) and use its commercially reasonable efforts to effect, at the earliest practicable date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and under the applicable state securities laws of (A) the Registrable Securities which the Corporation has been so requested to register by the Qualified Holder(s) in the Demand Notice, (B) all other Registrable Securities of the same class or series as those requested to be registered by the Qualified Holder(s) that the Corporation has been requested to register by the Demand Eligible Holders by written request (the “Demand Eligible Holder Request”) given to the Corporation within twenty (20) days following the receipt of the Corporation’s written notice of the receipt of the Demand Notice and (C) any other governmental requirements or regulationsRegistrable Securities to be offered and sold by the Corporation, in each case subject to Section 6(a)(iv), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities that the Company has been to be so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under registered. Notwithstanding anything in this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,0006 to the contrary, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will Corporation shall not be obligated to (I) effect more than one (1) Demand Registration Registrations in any six (66)-month period, (II) month period.
(b) The offering of the Registrable Securities pursuant to such effect any Demand Registration may be in the form of an underwritten public offering within ninety (an “Underwritten Offering”). In such case, (i90) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) days from the disposition date of the Registrable Securities disposed effectiveness of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
Statement or (dIII) A registration will not be deemed to have been effected as comply with a Demand Registration unless Notice to the Registration Statement relating thereto extent the Corporation has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has already complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, five (i5) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities Demand Notices pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)terms hereof.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver by the underwriters of the lock-up provisions in the Merger IPO Underwriting Agreement), the any Holder or Holders shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that in the aggregate equals or is greater than the Minimum Registration Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Holder or Holders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering; providedand
(ii) all other Ordinary Shares that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, however, that but subject to Section 4.1(f).
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the Company will not be obligated to effect more than one identity of the Holder (1) Demand Registration in any six (6) month periodor Holders).
(bc) The offering Each Holder shall be entitled to an unlimited number of Demand Registrations until such time as the Holders, together, Beneficially Own less than the Minimum Registration Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the requesting Holder whose shares represent a majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf which all of the Holders.
Holders were given the opportunity to exercise “piggyback” rights pursuant to Section 4.2 (csubject to Section 4.1(f) If, in connection with an Underwritten Offering, and provided that at least 50% of the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the such Holders thereof to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.1(a) and Section 4.3(f). In addition, the Company shall be entitled to postpone (upon written notice to all Holders) for a reasonable period of time not to exceed 45 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any twelve-month period) if the Board determines in good faith and in its reasonable judgment that does the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of (i) material, non-public information that the Company has a bona fide business purpose for preserving as confidential, (ii) a significant business opportunity (including a potential acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, share exchange, tender offer or other similar transaction) available to the Company which the Board reasonably determines to be significantly disadvantageous for the Company to disclose or (iii) any other event or condition of similar significance to the Company that the Board reasonably determines to be significantly disadvantageous for the Company to disclose and which the Company is not exceed otherwise required to disclose at such Underwriters’ Maximum Numbertime (each of the conditions in (i), (ii) and (iii), a “Disadvantageous Condition”), and the Company shall furnish to the Initial Shareholder a notice stating that the Company is deferring such registration pursuant to this Section 4.1(e) and an approximation of the anticipated duration of the delay. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration due to a Disadvantageous Condition, the Holder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of the Holders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Holders, which, in the opinion of the underwriter, can be sold without adversely affecting the marketability of the offering pro rata among such Holder. No shares Holders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person other than Registrable Securities held by such Holders; and (ii) second, securities the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesCompany proposes to sell.
(dg) A registration Any investment bank(s) that will not be deemed serve as an underwriter with respect to have been effected as a such Demand Registration unless the or, if such Demand Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, the Company fails to provide Full Cooperationany investment bank engaged in connection therewith, then such registration will shall be deemed not to have been effected for purposes selected by Holders holding a plurality of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the all Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Demand.
Appears in 1 contract
Sources: Shareholders Agreement (Hanson Building Products LTD)
Demand Registration. (a) Subject to the provisions hereof, at any time on or From and after the date that is 180 days hereof until five (5) years after the Closing Date (as defined in the Merger Agreement)Company completes a Qualified IPO or until Holders’ rights under this Agreement otherwise terminate, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require have the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings demand registrations in any twelve the aggregate on Form ▇-▇, ▇-▇ or S-3 (12) month periodor similar forms then in effect for small business entities), and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) Ifsuch applicable or successor forms, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in then owned of record and beneficially by such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in Holders. A request for such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to (a “Registration Request”) must be allocated pro rata among the made in writing by Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest owning at least fifty percent (50%) of the Registrable Securities.
(db) A registration will not be deemed The Company shall use its best efforts to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of cause the Registrable Securities requested specified in the Registration Request (which amount may include Registrable Securities that were not registered pursuant to limitations or exclusions on registration set forth in Section 2.2 hereof) to be included registered as soon as reasonably practicable so as to permit the sale thereof, and in connection therewith shall, within thirty (30) days after such Holders provide the Company with such a Registration Request, prepare and file a registration statement with the SEC under the Securities Act to effect such registration.
(c) Such registration statement shall contain such required information pursuant to the rules and regulations promulgated under the Securities Act and such additional information as deemed necessary by the managing underwriter or, if there is no managing underwriter, as the Company deems necessary under the Securities Act.
(d) In connection with the preparation of the registration statement, each Holder shall:
(i) specify the number of shares intended to be offered and sold by that Holder;
(ii) express that Holder’s intention to offer or cause the offering of such shares for distribution;
(iii) describe the nature or method of the proposed offer and sale thereof by that Holder; an
(iv) undertake to provide all such information and materials and take all such action as may be required in order to permit the Company to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such registration statement.
(e) Notwithstanding the foregoing, if the Company shall furnish to the Holders making a Registration Request a certificate signed by a duly authorized officer of the Company stating that, in the registration by good faith judgment of the Holders are included in such registrationBoard of Directors of the Company, and it would be seriously detrimental to the Company has complied in all material respects with its obligations under this Agreement with respect theretofor such registration statement to be filed on or before the date such filing would be required, then the Company shall be entitled to postpone filing of the registration statement for up to ninety (90) days; provided, however, that if, after it the Company shall be entitled to issue such a certificate only one (1) time in any given twelve (12) month period.
(f) If a registration has become effectiveeffective but is withdrawn before completion of the offering contemplated thereby because of adverse business developments at the Company that were not known to the requesting Holders when they requested that the Company initiate such registration proceedings, such registration shall not count as one of the two registrations referred to in Section 2.1(a).
(ig) such Registration Statement or The Company shall not cause the related offer, sale or distribution of Registrable registration under the Securities thereunder is or becomes the subject Act of any stop order, injunction or other order or requirement shares of the SEC or any Common Stock to become effective (other governmental or administrative agencythan registration of an employee stock plan, or if registration in connection with any court prevents Rule 145 or otherwise limits similar transaction) during the sale effectiveness of the Registrable Securities pursuant a registration requested hereunder.
(h) Notwithstanding anything to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringcontrary, the Company fails shall not be required to provide Full Cooperation, then such registration will be deemed not take any action to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by effect any such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to qualification or compliance under this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time 2.1 prior to the commencement completion of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Qualified IPO.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereofSection 1(b) and Section 3 below, at any time on or after the date that is 180 days after hereof if at the Closing Date time Investor (as defined or the successors and permitted assigns of Investor, who for purposes of this Exhibit B shall be deemed to be included within the term "Investor") shall hold of record collectively at least 500,000 shares of unregistered NRC Stock, Investor (or, if there are one or more permitted assignees of Investor, persons holding a majority, in the Merger Agreement)aggregate, of the Holders of a majority of Registrable Securities Purchase Shares and NRC Shares acquired by Investor under the April 15 Agreements) shall have the right to require cause NRC to effect a registration under the Company to file a Registration Statement registering 1933 Act of such Purchase Shares and such NRC Shares for sale an underwritten public offering of all or part of their respective such Purchase Shares and such NRC Shares (the Purchase Shares and such NRC Shares being (collectively referred to as "Registrable Securities under the Securities Act (a “Demand Registration”Securities") by delivering written notice of its demand to cause NRC to effect such a written request therefor registration to the Company (i) NRC, specifying the number of shares of Registrable Securities to be included in such registration by such Holder and the intended method of distribution thereof (the "Demand Registration Request"). NRC shall, as expeditiously as possible under the circumstances, use its best efforts to effect the registration under the 1933 Act and to effect any notification, registration or Holders, (ii) specifying whether qualification under any applicable state securities law of the Registrable Securities which NRC has been so requested to register in the Demand Registration Request for disposition in accordance with the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included stated in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Request (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will except that NRC shall not be obligated to effect more than one (1list any of its securities on any additional stock exchange or register or comply with any laws, rules or regulations of any foreign government or agency) and all to the extent necessary to permit the sale or other disposition by Investor of Registrable Securities to be so registered in accordance with the method of distribution set forth in the Demand Registration in any six (6) month periodRequest.
(b) The offering demand registration rights granted in Section 1(a) above shall only be exercised concurrently with, and not in addition to, the exercise by Investor of the Registrable Securities demand registration rights granted to Investor by NRC pursuant to such Demand Registration may be the April 15 Agreements. Notwithstanding anything to the contrary contained in this Exhibit B or in the form of an underwritten public offering April 15 Agreements (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(sincluding Section 1(b)(i) of Exhibit C to each of the Underwritten OfferingApril 15 Agreements), provided that such Holders may designate a co-managing underwriter Investor shall have the right to participate exercise its demand registration rights under this Section 1 (and under Section 1 of each of the April 15 Agreements) on two occasions in the Underwritten Offeringaggregate, subject to the approval of the Companyfollowing limitations: (i) Investor must wait at least six (6) months between exercising its demand registration rights, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form each Demand Registration Request by Investor must be for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit at least 25% of the underwriter(s) shall also be made to and for the benefit shares of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished Common Stock then owned by Investor which were originally purchased pursuant to the Company by April 15 Agreements or on behalf of such Holder expressly for inclusion therein and (b) shall not this Agreement in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holdersaggregate.
(c) IfSubject to Section 3 below, NRC may elect to include in connection with an Underwritten Offeringany registration statement and offering made pursuant to this Section 1 authorized unissued NRC Shares or NRC Shares held by NRC as treasury shares; provided, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed such NRC Shares shall be permitted to be included in such registration exceeds only to the Underwriters’ Maximum Number, then (i) extent that it is pursuant to and subject to the Company shall so advise all Holders terms of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested underwriting agreement or arrangements entered into by the Holders thereof to be included in such Investor exercising the demand registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations rights granted under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)1.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Mil Investments S A)
Demand Registration. (ai) Subject to the provisions hereofterms and conditions of this Agreement, at any time on or and from time to time after the date that is 180 90 days after the Closing Date (as defined in the Merger Agreement)date hereof, the Holders of a majority of Registrable Securities shall have the right upon written notice to require the Company to file (a Registration Statement registering for sale all “Demand Notice”) delivered by one or part of their respective Registrable Securities under more Qualified Holders requesting that the Securities Act Company effect the registration (a “Demand Registration”) under the Securities Act (other than pursuant to a registration statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of any or all of the Registrable Securities held by delivering a written request therefor such Qualified Holder(s) which offering is expected to yield aggregate gross proceeds of at least $25 million or, if the expected gross proceeds of the sale of all remaining Registrable Securities is less than $25 million, then such registration shall include all remaining Registrable Securities, the Company shall promptly (ibut in any event, not later than five Business Days following the Company’s receipt of such Demand Notice) specifying the number give written notice of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandDemand Notice to all other Holders that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Holder”). The Company shall promptly file the appropriate Registration Statement (the “Demand Registration Statement”) and use its commercially reasonable efforts to effect, at the earliest practicable date, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsunder the applicable state securities laws of (A) of the Registrable Securities that which the Company has been so requested to register; providedregister by the Qualified Holder(s) in the Demand Notice, however, that (iB) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for all other Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (iithe same class or series as those requested to be registered by the Qualified Holder(s) the Holders will not be entitled to require which the Company has been requested to effect more than three register by the Demand Eligible Holders by written request (3the “Demand Eligible Holder Request”) Demand Registrations in given to the aggregate under this AgreementCompany within five Business Days after the giving of such written notice by the Company, and (iiiC) any Registrable Securities to be offered and sold by the Company will not be obligated Company, in each case subject to effect more than one Section 2(b)(ii), all to the extent required to permit the disposition (1in accordance with the intended methods of disposition) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such be so registered. The Holders’ rights to request a Demand Registration may set forth in this Section 2(b) shall not be in exercisable at any time if the form of an underwritten public offering (an “Underwritten Offering”). In such case, Company (i) the Company may designate the managing underwriter(s(x) is not in violation of the Underwritten Offeringits obligations to file a Shelf Registration Statement pursuant to Section 2(a) or (y) has a currently effective Shelf Registration Statement covering all Registrable Securities in accordance with Section 2(a), provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has otherwise complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Amplify Energy Corp.)
Demand Registration. (a) Subject If the Company shall receive a written request by either (x) the DLJ Entities or their Permitted Transferees or (y) the Requisite DLJIP Entities (any such requesting Person, a "SELLING STOCKHOLDER") that the Company effect the registration under the Securities Act, which, in the case of the Requisite DLJIP Entities, shall be a Shelf Registration, of all or a portion of such Selling Stockholder's Registrable Securities, and specifying the intended method of disposition thereof, then the Company shall promptly give written notice of such requested registration (a "DEMAND REGISTRATION") at least 10 days prior to the provisions hereofanticipated filing date of the registration statement relating to such Demand Registration to the Stockholders other than the Selling Stockholders and thereupon will use its best efforts to effect, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)expeditiously as possible, the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company of:
(i) specifying the number Registrable Securities then held by the Selling Stockholders which the Company has been so requested to register by the Selling Stockholders; and
(ii) subject to the restrictions set forth in Section 3.04, all other Registrable Securities of the same type as that to which the request by the Selling Stockholders relates which any Other Stockholder entitled to request the Company to effect an Incidental Registration (as such term is defined in Section 5.02) pursuant to Section 5.02 (all such Stockholders, together with the Selling Stockholders, the "HOLDERS") has requested the Company to register by written request received by the Company within 5 days after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; PROVIDED that, subject to Section 5.01(d) hereof, (I) the Company shall not be obligated to effect more than six Demand Registrations for the DLJ Entities and (II) the Company shall not be obligated to effect more than two Demand Registrations for the Requisite DLJIP Entities; and PROVIDED, FURTHER, that the Company shall not be obligated to effect any Demand Registration for the DLJ Entities unless the aggregate proceeds expected to be received from the sale of Registrable Securities to be included in such registration by such Holder Demand Registration, in the reasonable opinion of DLJMB exercised in good faith, equal or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall exceed (x) promptly notify all Holders from whom $25,000,000 if such Demand Registration would constitute the request for registration has not been received and Initial Public Offering, or (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or $10,000,000 in all other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that cases. In no event will the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration in within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 5-day period referred to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i5.01(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein therein. The Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without unless the prior written consent participating Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration or unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoregistration have actually been sold thereunder); provided, however, PROVIDED that if, after it has become effective, if (i) after any registration statement requested pursuant to this Section becomes effective (x) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case (y) less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 75% of the Registrable Securities included in such registration. In circumstances registration statement is sold thereunder, or (ii) the Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than 66 2/3% of the Registrable Securities of the Selling Stockholders sought to be included in such registration are included, such registration statement shall be at the sole expense of the Company and shall not including the events described be considered a Demand Registration; and PROVIDED FURTHER that, in the immediately two preceding sentences event of this Section 4.2(dany Black Out Period (defined below), each Holder any Shelf Registration will remain effective for a period of time equal to 180 days plus the length of such Black Out Period. Notwithstanding the foregoing, the Company shall not be required to file, amend or supplement any Shelf Registration, any related prospectus or any document incorporated therein by reference, for a period (a "BLACK OUT PERIOD") not to exceed an aggregate of 60 days in any calendar year, in the event that (i) in the case of any amendment or supplement only, an event occurs and is continuing as a result of which the Shelf Registration, any related prospectus or any document incorporated therein by reference as then amended or supplemented would, in the Company's good faith judgment, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (ii) in all cases, (A) the Company determines in its good faith judgment that the disclosure of such event at such time would have a material adverse effect on the business, operations or prospects of the Company or (B) the disclosure otherwise relates to a material business transaction which has not yet been publicly disclosed; PROVIDED that such Black Out Period shall be extended for any period, not to exceed an aggregate of 30 days in any calendar year, during which the SEC is reviewing any proposed amendment or supplement to the Shelf Registration, any related prospectus or any document incorporated therein by reference which has been filed by the Company.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Stockholders that, in its view,(i) the number and/or type of Registrable Securities shall requested to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that included in such registration nonetheless shall count as a Demand Registration for purposes of clause (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the proviso Registrable Securities owned by the Holders, in any such case, exceeds the largest number and/or type of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "MAXIMUM OFFERING SIZE"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be registered by the Selling Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be registered);
(B) second, all Registrable Securities requested to be included in such registration by any other Holder and their Permitted Transferees (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Holders on the basis of the relative number of shares of Registrable Securities so requested to be included); and
(C) third, any securities proposed to be registered by the Company.
(f) If, in connection with any Demand Registration pursuant to this Section 4.2(a)or any sale pursuant to Rule 144A under the Securities Act with respect to the Common Shares, Preferred Shares or shares of Senior Preferred Stock, any Selling Stockholder shall seek to transfer any Warrants together with Common Shares, Preferred Shares or shares of Senior Preferred Stock, the Company shall at the request of any such Selling Stockholder effect a registration of such Warrants to which the provisions of this Article 5 shall apply MUTATIS MUTANDIS and a registration, pursuant to a Shelf Registration, so as to permit the resale of the Common Shares for which any Warrants so transferred may be exercisable. The Company shall maintain the effectiveness of any such Shelf Registration, and take all actions necessary to permit resale of such Common Shares as may be required by applicable state securities laws.
Appears in 1 contract
Sources: Investors' Agreement (Decrane Aircraft Holdings Inc)
Demand Registration. From and after the earlier of (ax) Subject to the provisions hereof, at any time on or date that is one calendar year after the date hereof, (y) the occurrence of a Seller Breach, and (z) the date that is 180 days the Purchaser no longer owns 5% of the outstanding Common Stock, in each case after receipt of a written request from the Closing Date Holders owning 50% of the Registrable Securities of each class requesting that the Company effect the registration of all or a portion of the Registrable Securities and specifying the intended method or methods of disposition thereof (as defined in the Merger Agreementa "Holder Notice"), the Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holdersshall, (ii) specifying whether the intended method of disposition thereof as expeditiously as is pursuant to an Underwritten Offering (as defined below)possible, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued for sale under the Securities Act and any other governmental requirements or regulations) of the all shares of Registrable Securities that which the Company has been so requested to registerregister by such Holders, all to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of such Registrable Securities so registered; provided, however, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one (1) Demand Registration in registration of any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may this Section 2(a) except as otherwise expressly provided herein. Notwithstanding any provision of this Agreement to the contrary, however, the rights granted to the Purchaser and the Holders pursuant to this Agreement including, without limitation, this Section 2(a), shall be in irrevocably terminated upon the form occurrence of an underwritten a Purchaser Breach. 5 If the managing underwriter of a proposed public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in writing that, in its or their reasonable opinion opinion, the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% distribution of the Registrable Securities requested to be included in the registration concurrently with the securities being registered by the Holders are included in Company or such registration, other registering security holders would materially and adversely affect the distribution of such securities by the Company has complied in or such registering security holders, then the Company may require all material respects with its obligations under this Agreement with respect theretoselling security holders (other than the Company) to reduce the amount of securities each intended to distribute through such offering on a pro rata basis; provided, however, that ifif the Company requires such reduction, and if Holders requesting such registration pursuant to this Section 2(a) are unable to include in such registration Registable Securities that they requested be included in such registration in the related Holder Notice that constitute Substantial Market Value Securities, due to such pro rata reduction (the Registrable Securities that such Holder so requested to be included in such registration that were not included in such registration due to such pro rata reduction being referred to herein as the "Reduction Shares", and the registration in which such reduction occurred being referred to herein as a "Failed Registration"), then subject to the other provisions hereof applicable to a demand registration the Holders of the Reduction Shares shall have the right, exercisable commencing on the day that is two calendar months after it has become effectivethe termination of the Registration Period relating to the Failed Registration by written notice sent to the Company by Holders of 50% of the Reduction Shares (a "Repurchase/Register Notice"), to require the Company to elect (at the Company's option) to either register the Reduction Shares otherwise pursuant to this Section 2(a) or, if the foregoing offer to sell or resulting sale is then lawful, to repurchase the Reduction Shares at the higher of (i) such Registration Statement or the related offer, sale or distribution of price per share for which Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are were actually sold by in the selling Holder or Holders pursuant to the Registration StatementFailed Registration, or (ii) if, in the case of an Underwritten Offering, Market Price on the date the Repurchase/Register Notice is sent to the Company fails to provide Full Cooperationin compliance with this Agreement; provided, then such registration will however, that the Holders shall not be deemed not hereby or thereby to have been effected for purposes of clause (ii) of made any offer to sell to the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 Company that does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then comply with applicable law and the Company shall continue not be entitled or deemed to be obligated entitled to effect repurchase such Reduction Shares or to be offered the right to or solicit the right to repurchase such Reduction Shares or deemed to have bid for such Reduction Shares hereby or thereby if such repurchase, offer, or bid would violate any applicable securities law; and provided further, however, that any such repurchase shall otherwise comply with the procedures applicable to the Company's right to repurchase securities upon the occurrence of a Demand Registration pursuant to this Section 4.2 Purchaser Breach set forth in Article VIII of the Registrable Securities included in Stock Purchase Agreement, to the extent that such registrationprocedures do not conflict with the provisions hereof, without requirement for the occurrence of a Purchaser Breach. In circumstances The Company shall respond to such Repurchase/Register Notice by written notice to the Purchaser within 30 business days after its receipt of the Repurchase/ Register Notice (an "Election Notice"), which Election Notice shall set forth whether the Company desires to so register such Reduction Shares or to repurchase such Reduction Shares; provided, however, that the Company shall be deemed to have elected to register such Reduction Shares if it does not including give such notice within such 30 business day period. If the events described Company so elects to repurchase such Reduction Shares, and if the Market Price requires an agreement of the Company and such holders as to the fair market value of such Reduction Shares, the consummation of such repurchase shall not be required to be consummated until as 6 soon as practicable after such fair market value has been determined as set forth in the immediately two preceding sentences definition of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Market Price set forth herein.
Appears in 1 contract
Sources: Registration Rights Agreement (Crown Northcorp Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined in would permit the Merger Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver of the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the Holders date a Demand is made shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
(ii) all other Registrable Securities that the Company has been requested to register by the Registering Stockholder pursuant to Section 4.1(b);
(iii) all shares of Common Stock that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); providedand
(iv) all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, howeverif any, that to be so registered.
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company will not be obligated shall give written notice of such Demand to effect more than one (1) any other Persons that on the date a Demand is delivered to the Company is a Stockholder. Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five days after such notice by the Company has been given. Such written request shall comply with the requirements of a Demand as set forth in any six (6) month periodthis Section 4.1(b).
(bc) The offering Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(sin which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) in any prior underwritten offering conducted by the Company on its own behalf or on behalf and provided that at least 50% of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof such Stockholders to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that does not exceed the filing or effectiveness of the registration statement relating to such Underwriters’ Maximum NumberDemand Registration would cause the disclosure of material, such non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Holder. No shares Stockholders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent securities of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities Company duly requested to be included in such registration statement, pro rata on the registration basis of the number of such other securities requested to be included or such other method determined by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement Company.
(g) Any investment bank(s) that will serve as an underwriter with respect thereto; providedto such Demand Registration or, however, that if, after it has become effective, (i) if such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by FIG LLC, for so long as a majority of the Common Stock of the Company fails to provide Full Cooperationis owned by the Initial Stockholder, then such registration will be deemed not to have been effected for purposes of clause its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) of by the proviso to Section 4.2(a). If Stockholder participating in such Demand Registration that holds (itogether with its Permitted Transferees) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement number of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences Demand Registration constituting a plurality of this Section 4.2(d), each Holder of all Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of included in such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Stockholders Agreement (Nationstar Mortgage Holdings Inc.)
Demand Registration. (a) Subject to The Company may include in a Demand ------------------- Registration Shares for the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders account of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering and Shares for sale all or part the account of their respective Registrable Securities under other holders thereof exercising contractual piggyback rights, on the Securities Act (a “Demand Registration”) by delivering a written request therefor to same terms and conditions as the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether therein for the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) account of the Registrable Securities that the Company has been so requested to registerDemanding Holder(s); provided, however, that (i) if the Holders shall not make a request for a Demand Registration under this managing -------- Underwriter or Underwriters of any underwritten offering described in Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require 2.1 have informed the Company to effect more than three (3) Demand Registrations in writing that it is their opinion that the aggregate under this Agreementtotal number of Shares which the Demanding Holder(s), and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval and any such other holders intend to include in such offering is such as to materially and adversely affect the success of such offering, then (x) the number of Shares to be offered for the account of such other holders shall not be unreasonably withheld or delayed reduced (to zero, if necessary), in the case of this clause (x) pro rata in proportion to the --- ---- respective number of Shares requested to be registered and (iiy) thereafter, if necessary, the number of Shares to be offered for the account of the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (aif any) shall be limited reduced (to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementzero, any such preliminary prospectusif necessary), final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal extent necessary to reduce the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the total number of securities proposed Shares requested to be included in such registration offering to the number of Shares, if any, recommended by such managing Underwriters (and if the number of Shares to be offered for the account of each such Person has been reduced to zero, and the number of Shares requested to be registered by the Demanding Holder(s) exceeds the number of Shares recommended by such managing Underwriters’ Maximum Number, then (ithe number of Shares to be offered for the account of the Demanding Holder(s) shall be reduced to the Company shall so advise all Holders extent necessary to reduce the total number of Registrable Securities Shares requested to be included in such Underwritten Offering offering to the number of Shares, if any, recommended by such managing Underwriters, and in the case of a reduction where both Demand Registrations have been exercised, such reduction shall be pro rata in proportion to the respective number of Shares requested to be registered by the Demanding Holders), and (ii) if the Company will offering is not underwritten, no other party (other than Piggy-Back Holders and any other holders exercising contractual piggyback rights), including the Company, shall be obligated and required permitted to include in offer securities under any such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis Demand Registration unless a majority of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities Shares held by the Holders shall be included in a Demand Registration without the prior written Demanding Holder(s) consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing inclusion of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)shares therein.
Appears in 1 contract
Sources: Registration Rights Agreement (Mariner Post Acute Network Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date date hereof (or such earlier date (i) as defined in would permit the Merger Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver of the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the Holders date a Demand is made shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that the Company has been so requested to registerregister by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
(ii) all other Registrable Securities that the Company has been requested to register by the Registering Stockholder pursuant to Section 4.1(b);
(iii) all shares of Common Stock that the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f); providedand
(iv) all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, howeverif any, that to be so registered.
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company will not be obligated shall give written notice of such Demand to effect more than one (1) any other Persons that on the date a Demand is delivered to the Company is a Stockholder. Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five days after such notice by the Company has been given. Such written request shall comply with the requirements of a Demand as set forth in any six (6) month periodthis Section 4.1(b).
(bc) The offering Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) that the Company may designate the managing underwriter(s) of the Underwritten Offeringhas been requested to register, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offeringincluding, subject to the approval of extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company, which approval shall not be unreasonably withheld or delayed and .
(iie) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any within three months of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(sin which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) in any prior underwritten offering conducted by the Company on its own behalf or on behalf and provided that at least 50% of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof such Stockholders to be included in such Demand Registration were included) or (B) within three months of any other Underwritten Offering pursuant to Section 4.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any twelve-month period) if the Board determines in good faith and in its reasonable judgment that does not exceed the filing or effectiveness of the registration statement relating to such Underwriters’ Maximum NumberDemand Registration would cause the disclosure of material, such non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 4.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Holder. No shares Stockholders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person such Stockholders and such Stockholders that are Piggyback Sellers; (ii) second, securities the Company proposes to sell; and (iii) third, all other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent securities of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities Company duly requested to be included in such registration statement, pro rata on the registration basis of the number of such other securities requested to be included or such other method determined by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement Company.
(g) Any investment bank(s) that will serve as an underwriter with respect thereto; providedto such Demand Registration or, however, that if, after it has become effective, (i) if such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by FIG LLC, for so long as a majority of the Common Stock of the Company fails to provide Full Cooperationis owned by the Initial Stockholder, then such registration will be deemed not to have been effected for purposes of clause its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) of by the proviso to Section 4.2(a). If Stockholder participating in such Demand Registration that holds (itogether with its Permitted Transferees) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement number of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences Demand Registration constituting a plurality of this Section 4.2(d), each Holder of all Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of included in such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Shareholder Agreements (Nationstar Mortgage Holdings Inc.)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 days after the Closing Date (as defined in date on which the Merger Agreement)Company becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Holders holders of at least fifty percent (50%) of the Registrable Securities may request the Company register under the Securities Act the Registrable Securities held by such requesting holders in a majority firm commitment underwritten public offering or any other method of distribution (including offerings involving a delayed or continuous offering pursuant to Rule 415 under the Securities Act); provided, however, that the holders of Registrable Securities shall be entitled under this Section 2 to no more than the number of shares of Common Stock sufficient to yield net proceeds equal to the aggregate number of Registrable Securities multiplied by the per share initial public offering price multiplied by 0.33 ("Minimum Demand Proceeds"); provided further however, that if the underwritten public offer (or other method of distribution) does not yield the Minimum Demand Proceeds, the holders of Registrable Securities shall be entitled to request additional registrations until the holders of Registrable Securities shall have yielded the right to require Minimum Demand Proceeds. Upon receipt of such request, the Company shall promptly deliver notice of such request to file a Registration Statement registering for sale all or part Persons holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their respective desire to be included in such registration. The right of any Person to participate in such registration shall be conditioned upon their participation in such underwritten public offering (or such other method of distribution) and the inclusion of their Registrable Securities in the underwritten public offering (or such other method of distribution) to the extent provided herein. The Company will use its best efforts to expeditiously effect the registration of all Registrable Securities whose holders request participation in such registration under the Securities Act (a “Demand Registration”) by delivering a written request therefor and shall keep such registration effective until the Registrable Securities thereunder shall have been sold, but only to the extent provided for in the following provisions of this Agreement; provided, however, that the Company shall not be required to effect registration pursuant to a request under this Section 2 more than one (i1) specifying time for the holders of the Registrable Securities as a group; provided further however, that if a registration statement does not include the number of Registrable Securities requested by the holders thereof to be included in such registration statement, it shall not be counted as a registration statement initiated pursuant to this Section 2. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within 180 days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in which the holders of Registrable Securities shall have been entitled to join pursuant to Section 3 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested.
(b) With respect to a request for registration pursuant to this Section 2 involving an underwritten public - 3 - offering, the Company may include in each such requested registration any authorized but unissued shares of Common Stock (or authorized treasury shares) for sale by the Company and the Shareholders may include in each such requested registration shares of Common Stock held by such Shareholders; provided, however, that any such shares of Common Stock shall not be included to the extent that the managing underwriter of the offering (if the offering is underwritten) or the holders of a majority of the shares of Registrable Securities who requested the registration (if the offering is not underwritten), determine(s) in good faith that the inclusion of such shares will interfere with the successful marketing of the shares of Registrable Securities to be included in the registration. If the managing underwriter of such registration by such Holder or Holdersoffering determines in good faith that the number of securities sought to be offered should be limited due to market conditions, (ii) specifying whether then the intended method number of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required securities to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of underwritten public offering shall be reduced to a number deemed satisfactory by such demandmanaging underwriter, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities provided that the Company has been so requested shares to register; provided, however, that be excluded shall be determined in the following order of priority: (i) securities held by any other Persons (other than the Holders shall not make holders of Registrable Securities) having a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000contractual, incidental "piggy back" right to include such securities in the registration statement, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval securities offered on behalf of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on holders who did not make the basis provided in such underwriting agreement and completes and executes all questionnairesoriginal request for registration and, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month periodif necessary, and (biv) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf Registrable Securities of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in holders who requested such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities pursuant to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis Section 2. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iii) or (iv), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) The Company shall have the Holders shall be included in a Demand Registration without right to approve the prior written consent of managing underwriter chosen by the holders of a majority in interest of the Registrable SecuritiesSecurities to be sold in such offering (which approval will not be unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Commission is applicable) to become effective within 90 days following the effective date of any registration required pursuant to this Section 2.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SECIf, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject time of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the request to register Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten OfferingSection 2(a), the Company fails is preparing a registration statement for a public offering (other than a registration effected solely to provide Full Cooperation, then such registration will be deemed not implement an employee benefit plan or a transaction to have been effected for purposes of clause (ii) which Rule 145 of the proviso to Section 4.2(a). If Commission is applicable) which in fact is filed and becomes effective within ninety (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (4590) days after the commencement request, or is engaged in any activity (including a concurrent or proposed security issuance or - 4 - acquisition) which, in the good faith determination of the distribution Company's board of directors, would be adversely affected by the Holders requested registration to the material detriment of the Registrable Securities covered by such registrationCompany, then the Company may at its option direct that such request be delayed for a period (the "Black-Out Period") not in excess of 120 days from the effective date of such offering or the date of commencement of such other activity, as the case may be. The aggregate amount of Black-Out Periods in any consecutive twelve month period shall continue to be obligated to effect a Demand Registration pursuant to not exceed 120 days. Nothing in this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder 2(d) shall preclude a holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such enjoying registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to rights which it might otherwise possess under Section 4.2(a)3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Preferred Payment Systems Inc)
Demand Registration. (a) Subject to the provisions hereoflimitations provided herein, at any time on after an initial public offering of the Common Stock, upon the written request (specifying that it is being made pursuant to this Section 2.1) of either (i) one or after more Holders of Stratford Registrable Securities representing 50% or more of the date Stratford Registrable Securities at the time outstanding, or (ii) one or more Holders of Preferred Investors Registrable Securities representing 50% or more of the Preferred Investors Registrable Securities at the time outstanding, requesting that the Company effect the registration under the Securities Act of all or part of such Holders' Registrable Securities and the other Registrable Securities of the same class of Registrable Securities (i.e., Stratford Registrable Securities or Preferred Investors Registrable Securities) (collectively, the "Requested Registrable Securities"), and specifying (x) the intended method of disposition thereof, (y) whether or not such requested registration is 180 to be an underwritten offering, and (z) the price range (net of underwriting discount and commissions) acceptable to such Holder or Holders to be received for such Requested Registrable Securities, the Company will within ten (10) business days after the Closing Date Company receives such written request give written notice of such requested registration to all other Holders of Registrable Securities and thereupon the Company will use reasonable efforts to effect an effective registration under the Securities Act of:
(as defined i) the Registrable Securities which the Company has been so requested to register by such Holders; and
(ii) all other Registrable Securities which the Company has been requested to register by the other Holders thereof by written request given to the Company within 30 days after the giving of such written notice by the Company (which request shall specify the same information called for by the original request to effect registration described above), all to the extent requisite to permit the disposition (in accordance with Section 2.1(b) hereof) of the Registrable Securities so to be registered. Notwithstanding the foregoing, DFW shall have the ability to exercise its registration rights pursuant to this Section 2.1 at any time whether or not the Company has consummated an initial public offering of its Common Stock. If the Company is required to effect a registration pursuant to this Section 2.1 and the Company furnishes to the Holders of Registrable Securities requesting such registration a certificate signed by the President of the Company stating that in the Merger Agreement)good faith judgment of the Board of Directors of the Company it would be seriously detrimental to the Company and its stockholders for such registration statement to be filed on or before the date such filing would otherwise be required hereunder and it is therefore necessary to defer the filing of such registration statement, the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request for such registration from the Holder or Holders of Requested Registrable Securities requesting such registration; provided that during such time the Company may not file a registration statement for securities to be issued and sold for its own account or that of anyone other than the Holder or Holders of Requested Registrable Securities.
(b) The Holders of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Requested Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether statement shall determine the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) distribution of the Registrable Securities that the Company has been so requested to registerincluded; provided, however, that (i) the if no agreement of Holders shall not make of a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering majority of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Requested Registrable Securities to be included in such Underwritten Offering and registration statement is obtained, then if Holders of thirty percent (ii30%) of the Company will be obligated and required to include in such Underwritten Offering only that number of Requested Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed statement request an underwritten public offering, an underwritten public offering shall be the method of distribution with other methods permitted to the extent the managing underwriter for such Underwriters’ Maximum Numberoffering, in its sole discretion, agrees to other methods of distribution being covered by such registration statement.
(c) Whenever the Company shall effect a registration pursuant to this Section 2.1 in connection with an underwritten offering, no securities other than Requested Registrable Securities shall be included among the securities covered by such registration unless the managing underwriter of such offering shall have advised each Holder of Requested Registrable Securities to be allocated pro rata among covered by such registration in writing that the Holders thereof on the basis inclusion of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securitiessecurities would not adversely affect such offering.
(d) Registrations under this Section 2.1 shall be on such appropriate registration form of the Commission (i) as shall be selected by the Company and as shall be reasonably acceptable to the Holders of a majority of the Requested Registrable Securities to be registered, and (ii) as shall permit the disposition of such Registrable Securities in accordance with the method or methods of disposition selected pursuant to Section 2.1(b).
(e) Except as otherwise provided in this Section 2.1 or in Section 2.2, all expenses incurred in connection with each registration requested pursuant to Section 2.1 and each registration requested pursuant to Section 2.2 (excluding in each case underwriter's discounts and commissions applicable to Registrable Securities), including, without limitation, in each case, all registration, filing and National Association of Securities Dealer, Inc. fees; all fees and expenses of complying with securities or blue sky laws; all word processing, duplicating and printing expenses, messenger, delivery and shipping expenses; fees and disbursements of the accountants and counsel for the Company including the expenses of any special audits or "cold comfort" letters or opinions required by or incident to such registrations; and the reasonable fees and disbursements of one firm of counsel retained by Holders of such Requested Registrable Securities, premiums and other costs of policies of insurance against liabilities arising out of the public offering of the Registrable Securities, any fees and disbursements of underwriters customarily paid by issuers or sellers of securities, but excluding underwriting discounts and commissions, if any, shall be borne by the Company. In all cases, each Holder of Registrable Securities shall pay the underwriter's discounts and commissions applicable to the securities sold by such Holder.
(f) A registration will requested pursuant to this Section 2.1 shall not be deemed to have been effected as (i) unless a Demand Registration unless the Registration Statement relating registration statement with respect thereto has been declared become effective by the SEC, at least 75% (unless a substantial cause of the failure of such registration statement to become effective shall be attributable to one or more Holders of Requested Registrable Securities whose Requested Registrable Securities were to have been included in such registration statement) and all Requested Registrable Securities originally requested to be included in the registration by the Holders are registered (prior to any underwriter cutbacks) have been included in such registrationregistration statement, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, (ii) if after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agencycourt for any reason, or resulting in a failure to consummate the offering of Requested Registrable Securities offered thereby, (iii) if any court prevents or otherwise limits after a registration statement with respect thereto has become effective, the sale offering of Requested Registrable Securities offered thereby is not consummated due to factors beyond the control of the Holders of such Requested Registrable Securities, including without limitation in the context of a proposed firm commitment underwriting, the fact that the underwriters have advised the Holders of such Requested Registrable Securities pursuant that such Requested Registrable Securities cannot be sold at a net price equal to or above the registration, and in each case less than all net price anticipated at the time of filing of the preliminary prospectus or (iv) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (unless a substantial cause of such conditions to closing not being satisfied shall be attributable to one or more Holders of Requested Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, whose Requested Registrable Securities were included in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause statement).
(iig) of the proviso to Section 4.2(a). If (i) a requested registration requested pursuant to this Section 4.2 is deemed not 2.1 involves an underwritten offering, the underwriter or underwriters thereof shall be selected by the Company with the approval of the Holders of a majority of the Requested Registrable Securities to have been effected as be so registered.
(h) If a Demand Registration or (ii) the requested registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five 2.1 involves an underwritten offering, and the managing underwriter shall advise the Company in writing (45with a copy to each Person requesting registration) days after that, in its opinion, the commencement number of securities requested to be included in such registration exceeds the distribution by number which can be sold in such offering within a price range acceptable to the Holders of a majority or more of the Requested Registrable Securities requested to be included in such registration, then the Registrable Securities requested to be registered pursuant to this Section 2.1 shall be reduced to the number of Registrable Securities which the Company is so advised can be sold in (or during the time of) such offering by (i) first decreasing the other securities and Registrable Securities (other than Requested Registrable Securities) requested to be registered (pro rata among such Persons requesting such registration on the basis of the percentage of other securities held by such Persons immediately prior to the filing of the registration statement with respect to such registration), then (ii) by decreasing the securities the Company intends to issue and sell for its own account pursuant to the registration statement, and finally (iii) by decreasing the Requested Registrable Securities to be registered (pro rata among such Holders of Requested Registrable Securities on the basis of the percentage of Requested Registrable Securities held by such Persons immediately prior to the filing of the registration statement with respect to such registration). In connection with any registration as to which the provisions of this clause (h) apply, no securities other than Requested Registrable Securities shall be covered by such registration, then unless all Requested Registrable Securities requested to be included in such registration have actually been included.
(i) Notwithstanding the other provisions of this Section 2.1, the Company shall continue to not be obligated required by this Section 2.1 to effect a Demand Registration pursuant to more than one effective registration (other than Short Form Registrations) at the Company's expense requested by each of the Holders of the Stratford Registrable Securities and Preferred Investors Registrable Securities. The Company shall also be required by this Section 4.2 2.1, at the Company's expense, to effect an unlimited number of Short Form Registrations; provided, that, the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences to be registered thereon (A)(i) are expected to have an aggregate disposition price (before deductions for underwriting discounts and commissions) of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all at least $1,000,000 or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) constitute at least one percent (1%) of the proviso outstanding Common Stock and (B) the Company shall not have to Section 4.2(a)effect more than two Short Form Registrations during any one fiscal year.
Appears in 1 contract
Sources: Registration Rights Agreement (O2wireless Solutions Inc)
Demand Registration. (a) Subject to the provisions hereof, at At any time on or after the date that is 180 one hundred eighty (180) days after the Closing Date (as defined in initial public offering of the Merger Agreement)Company’s Common Stock pursuant to an effective registration under the Securities Act, the Holders holders of a majority of the Registrable Securities shall have the right to require may notify the Company that they intend to file a Registration Statement registering offer or cause to be offered for public sale all or part any portion of their respective Registrable Securities under in the Securities Act (a “Demand Registration”) by delivering a written request therefor to manner specified in such request. Upon receipt of such request, the Company (i) specifying the number shall promptly deliver notice of such request to all Investors holding Registrable Securities who shall then have thirty (30) days to notify the Company in writing of their desire to be included in such registration. If the request for registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to contemplates an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demandunderwritten public offering, the Company shall (x) promptly notify all Holders from whom state such in the request for written notice and in such event the right of any Person to participate in such registration has not been received shall be conditioned upon such Person’s participation in such underwritten public offering and (y) the inclusion of such Person’s Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use reasonable its best efforts to expeditiously effect (but in any event no later than sixty (60) days after such request) the registration of all Registrable Securities whose holders request participation in such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of Act, but only to the Registrable Securities that the Company has been so requested to registerextent provided for in this Agreement; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated required to effect or participate (a) registration pursuant to a request under this Section 2 more than two (2) Underwritten Offerings times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within ninety (90) days after the effective date of a registration statement filed by the Company covering a firm commitment underwritten public offering in any twelve (12which the holders of Registrable Securities shall have been entitled to join pursuant to Section 4 and in which there shall have been effectively registered all Registrable Securities as to which registration shall have been requested. A registration will not count as a requested registration under this Section 2(a) month periodunless and until the registration statement relating to such registration has been declared effective by the Commission at the request of the initiating shareholders; provided, however, that a majority in interest of the participating holders of Registrable Securities may request, in writing, that the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a majority in interest of such holders may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein and without reduction in the number of demand registrations permitted under this Section 2(a).
(b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior If a requested registration involves an underwritten public offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, and the managing underwriter(s) advise the Company underwriter of such offering determines in good faith that in its or their reasonable opinion the number of securities proposed sought to be offered should be limited due to market conditions, then the number of securities to be included in such registration exceeds underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter; provided, that the Underwriters’ Maximum Number, then shares to be excluded shall be determined in the following order of priority: (i) persons not having any contractual or other right to include such securities in the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and registration statement, (ii) securities held by any other Persons (other than the holders of Registrable Securities) having a contractual, incidental “piggy back” right to include such securities in the registration statement, (iii) securities to be registered by the Company will be obligated and required pursuant to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Numberstatement and, such if necessary, (iv) Registrable Securities to be allocated pro rata among the Holders thereof on the basis Securities. If there is a reduction of the number of Registrable Securities requested pursuant to clause (iv), such reduction shall be included therein by each such Holder. No shares made on a pro rata basis (based upon the aggregate number of Common Stock held by any Person other than Registrable Securities held by such holders).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the Holders managing underwriter shall be included in a Demand Registration without the prior written consent of chosen by the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included sold in such registration, and offering (which approval will not be unreasonably withheld or delayed). The Company may not cause any other registration of securities for sale for its own account (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has Securities Act is applicable) to become effective, effective within one hundred twenty (i120) such Registration Statement or days following the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject effective date of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested required pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)2.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereofSection 2.2, at any time on or beginning six months after the effective date that is 180 days after of the Closing Date Company's initial public offering of common shares, any one Specified Shareholder (as defined a "Demanding Shareholder"), but only, in the Merger Agreementcase of Securitas Capital Fund, with respect to one Registered Public Offering as provided in Section 2.1(b), the Holders of a majority of Registrable Securities shall have the right to require the Company to file use its reasonable best efforts to fulfill such requirements as may be necessary to permit a Registration Statement registering for sale all or part Registered Public Offering (on a firm-commitment, underwritten basis) of their respective Registrable Securities under for the Securities Act (a “Demand Registration”account(s) of Specified Shareholders, by delivering a written request therefor notice of such demand to the Company (i) specifying the number of Registrable Securities that are held of record, and are proposed to be included sold in such registration offering, by the Demanding Shareholder (a "Demand Request"). If more than one Demand Request is submitted to the Company before the Company delivers a Notice of Demand Request in respect thereof pursuant to, and as defined in, Section 2.1(c), then all such Holder or HoldersDemand Requests and their Demanding Shareholders shall be treated collectively, as a single Demand Request and a single Demanding Shareholder, respectively, provided that, if a Demand Request is permitted to be withdrawn under Section 2.2(a), (iib) specifying or (c), and if such request involves individual Demand Requests that have been submitted by more than one Demanding Shareholder and are being treated collectively as a single Demand Request under this sentence, then each such Demanding Shareholder that submitted such an individual request shall be entitled to withdraw its own individual request, and its determination whether the intended method of disposition thereof is pursuant or not to an Underwritten Offering withdraw shall apply solely with respect to its own individual request, provided, further, that any such individual request or requests that are not withdrawn need not be withdrawn and shall continue to be counted as a single Demand Request as long as, collectively, they satisfy any requirement that may apply under Section 2.1(b) and, if they do not, they shall be deemed to have been withdrawn as well, and, provided, further, that all Joining Requests (as defined below) shall (except as provided in the next sentence) remain in effect as long as any one or more of such individual Demand Requests remain in effect. Notwithstanding the foregoing, a Founder (or, solely with respect to one Registered Public Offering, Securitas Capital Fund as provided in Section 2.1(b)) making a Joining Request shall have the right to withdraw such request if at such time a Demand Request is permitted to be withdrawn under Section 2.2(a), (b) or (c).
(b) Notwithstanding the foregoing, if the total number of Registrable Securities specified in any Demand Request is less than a number of shares of Common Stock equal to the lesser of (i) 10% of all shares of Common Stock outstanding as of the date of such Demand Request, or (ii) shares of Common Stock having a value of $100 million, based on the Current Market Price as of the date of such Demand Request, then neither the rights of any Specified Shareholder, nor the obligations of the Company set forth in this Article II, shall arise in respect of such Demand Request(s), which shall be deemed null and void and without effect and will not be counted as a Demand Request for any purpose hereunder. Notwithstanding any provision hereof, Securitas Capital Fund shall be entitled to make a Demand Request only once (whether or not any such request is joined with another Demand Request made by a Founder, but excluding any such request that is withdrawn and nullified pursuant to Section 2.2(a), (b) or (c)), and all rights that Securitas Capital Fund may have under this Article II in its capacity as a Seller Specified Shareholder (iiias defined below) containing all information about such Holder required shall apply solely with respect to be included in such Registration Statement in accordance with applicable law. As soon one Registered Public Offering as practicable after to which it has made an effective Demand Request.
(c) The Company shall give prompt written notice (the "Notice of Demand Request") of its receipt of any such demand, Demand Request to all Specified Shareholders who hold of record any Registrable Securities and thereupon the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that of: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described Demand Request for disposition in the immediately two preceding sentences of this Section 4.2(d)a firm-commitment, each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause underwritten public offering; and (ii) all other Registrable Securities as to which Specified Shareholders who are the holders thereof shall have made a written request (a "Joining Request") to the Company for registration thereof within fifteen (15) days after the transmittal of such Notice of Demand Request by the proviso Company, in each case as necessary to Section 4.2(apermit such holders, together with a Demanding Shareholder (each, a "Seller" and, collectively, the "Sellers"), to sell Registrable Securities in such firm-commitment, underwritten public offering.
Appears in 1 contract
Sources: Registration Rights Agreement (Allied World Assurance Co Holdings LTD)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Restricted Term, the Holders Investor and any Permitted Transferee of the Investor (each a “Holder”) holding, collectively, a majority of the Registrable Securities then outstanding shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Shares held by or issuable to them (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerregister as soon as practicable (and in any case by the applicable Filing Date); provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a2.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the 25,000,000. The Holders will not shall be entitled to require the Company to effect more than three two (32) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The If the offering of the Registrable Securities pursuant to such Demand Registration may be in the form of is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that registration (a) first, the number of Registrable Securities securities requested to be included therein by holder(s) of Company securities having contractual rights to include Company securities in such registration (including, for the avoidance of doubt, the rights provided under the Investors’ Rights Agreement, dated as of August 14, 2015, by and between the Company and the investors party thereto (the “Prior Rights Holders”)) with priority over the Holders thereof with respect to such registration, and (b) second, the number of securities requested to be included in such registration that does not exceed such Underwriters’ Maximum Number, such by all Holders of Registrable Securities to be allocated included in such Underwritten Offering, pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in , and on a Demand Registration without the prior written consent of pari passu basis with the holders of a majority in interest contractual registration rights provided under the Share Purchase Agreement by and between the Company and C.P. Pharmaceuticals International C.V. dated as of May 6, 2016 (the Registrable Securities“Pfizer Holders”).
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least seventy five percent (75% %) of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement and is not cured within forty five (45) days thereof, and (ii) in each case less than all seventy five percent (75%) of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at i. At any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)and from time to time, the Holders BDI may make a written demand for one underwritten registration of a majority of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective its Registrable Securities under the Securities Act (any such registration, a “Demand Registration” and the registration statement relating thereto, a “Demand Registration Statement”). Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The Issuer will notify all other Investors who are holders of Registrable Securities of the demand, and each such other Investor who wishes to include all or a portion of such Investor’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Issuer within fifteen (15) days after the receipt by delivering such holder of the notice from the Issuer. Upon any such request, the Issuer will use its reasonable best efforts to effect, as promptly as practicable, the registration under the Securities Act of the Registrable Securities which the Issuer has been so requested to register, subject to Sections 2(a) (iii), 3(a)(iv), 3(a)(v) and 6(c). All Demanding Holders proposing to distribute their securities through such underwriting shall complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements (with the Underwriter or Underwriters selected for such underwriting by the Issuer (in the case of an offering in which the Issuer does not intend to offer any of its capital stock for sale, with the consent of BDI, such consent not to be unreasonably withheld)) and other documents reasonably required under the terms of the applicable underwriting arrangements and shall take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities included in such underwriting.
ii. A registration will count as a written Demand Registration if (A) the Registration Statement is filed with the Commission with respect to such Demand Registration and has been declared effective, (B) the Registration Statement is withdrawn after filing at the request therefor of a majority-in-interest of the Demanding Holders or (C) the Registration Statement is withdrawn prior to filing at the Company request of majority-in-interest of the Demanding Holders and the Demanding Holders fail to reimburse the Issuer for the Registration Expenses incurred by the Issuer in connection therewith within 30 days of receipt of a reasonably detailed invoice therefor; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) specifying such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Issuer shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
iii. If in the sole discretion of the managing Underwriter or Underwriters the registration of all, or part of, the Registrable Securities which BDI and any other Investors requested to be included would adversely affect such public offering, then the Issuer shall be required to include in the underwriting only that number of Registrable Securities, if any, which the managing Underwriter or Underwriters believe may be sold without causing such adverse effect. If the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement underwriting in accordance with applicable lawthe foregoing is less than the total number of shares which BDI and such other Investors have requested to be included, then BDI and such other Investors shall participate in the underwriting pro rata based upon their total ownership of Registrable Securities. As soon Any such limitation shall be imposed in such manner so as practicable after to avoid any diminution in the receipt number of such demandshares the Issuer may register for sale by giving first priority for the shares to be registered for issuance and sale by the Issuer and the Underwriter, and by giving second priority for the Company shall (x) promptly notify all Holders from whom shares to be registered for sale by BDI and the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) Investors.
iv. If BDI disapproves of the terms of any underwriting or is not entitled to include all of its Registrable Securities that in such underwritten offering, BDI may elect to withdraw from such offering by giving written notice to the Company has been so requested Issuer and the Underwriter or Underwriters of its request to register; provided, however, that (i) withdraw prior to the Holders shall not make filing of the Registration Statement. If BDI withdraws from a request for proposed offering relating to a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will because it is not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering include all of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by due to the Company on its own behalf or on behalf inclusion of securities to be sold for the account of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full CooperationIssuer, then such registration will be deemed shall not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected count as a Demand Registration or (ii) the registration requested pursuant Registration. No other withdrawal by an Investor from a proposed offering relating to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that cause such registration nonetheless shall not to count as a Demand Registration except for purposes a Registration Statement that is withdrawn prior to filing at the request of clause (ii) majority-in-interest of the proviso Demanding Holders and as to Section 4.2(a)which the Demanding Holders reimburse the Issuer for the Registration Expenses incurred by the Issuer in connection therewith within 30 days of receipt of a reasonably detailed invoice therefore.
Appears in 1 contract
Sources: Registration Rights Agreement (Comstock Homebuilding Companies, Inc.)
Demand Registration. (a) Subject to the provisions hereofSection 4.2(a), if, at any time on or after the date that which is 180 days after eleven (11) months from the Closing Date (as defined date hereof, the Company shall receive from a Holder or Holders beneficially owning in the Merger Agreementaggregate more than 50% of the Registrable Securities a written request (a "Demand Request") that the Company register under the Securities Act the Registrable Securities, then the Company shall use its commercially reasonable efforts to cause all Registrable Securities specified in such Demand Request to be registered as soon as reasonably practicable so as to permit the offering and sale thereof and, in connection therewith, shall, as expeditiously as possible, but in any event not later than thirty (30) days (excluding any days which occur during the period of a permitted Suspension Condition under Section 4.2 below) after receipt of a Demand Request, prepare and file with the SEC, a registration statement, which may, at the option of such Holder(s), the Holders of be a majority of Registrable Securities shall have the right to require shelf registration statement on Form S-3 (if such Form S-3 is available for use by the Company to file a Registration Statement registering for sale all or part effect the registration and distribution of their respective the Registrable Securities Securities) pursuant to Rule 415(a)(1)(i) under the Securities Act (a “"Demand Registration”Registration Statement") by delivering a written request therefor and use its commercially reasonable efforts to the Company (i) specifying the number of Registrable Securities cause such Demand Registration Statement to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerdeclared effective; provided, however, that such Demand Request shall: (i) specify the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, intended to be offered and sold by the Holder(s) pursuant thereto; (ii) express the Holders will not be entitled present intention of the Holder(s) to require offer or cause the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the such Registrable Securities pursuant to such Demand Registration may be in Statement; (iii) describe the form nature or method of distribution of such Registrable Securities pursuant to such Demand Registration Statement, including by means of an underwritten public offering offering; and (an “Underwritten Offering”). In such case, (iiv) contain the Company may designate the managing underwriter(s) undertaking of the Underwritten Offering, provided that Holder(s) to provide all such Holders information and materials and take all such actions as may designate a co-managing underwriter be required in order to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, permit the Company to and for the benefit comply with all applicable requirements of the underwriter(s) shall also be made to Securities Act, the Exchange Act and for the benefit rules and regulations of the Holders proposing SEC thereunder, and to distribute their securities through obtain any desired acceleration of the Underwritten Offeringeffective date of such Demand Registration Statement.
(b) Notwithstanding anything herein to the contrary, (ii) if a Form S-3 is available for use by the Company to effect the registration and distribution of the Registrable Securities, the Demand Registration Statement shall be on Form S-3, and no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to Demand Request that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in register any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers Form S-1 or other form of attorney, indemnities and other documents reasonably required registration under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the HoldersSecurities Act.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise The procedures to be followed by the Company that in its or their reasonable opinion and the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registrationHolders, and the respective rights and obligations of the Company has complied in all material respects with its obligations under this Agreement and the Holders, with respect thereto; providedto the preparation, however, that if, after it has become effective, (i) such filing and effectiveness of the Demand Registration Statement or and the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Demand Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to under this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this 4.1 are set forth in Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)hereof.
Appears in 1 contract
Sources: Standstill and Registration Rights Agreement (Cell Genesys Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of Upon written notice from a majority Holder of Registrable Securities shall have in the right to require manner set forth in Section 11(g) hereof requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of any or all or part of their respective the Registrable Securities held by such Holder, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Company will use its best efforts to effect (at the earliest practicable date) the registration under the Securities Act of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (including, but not limited to, an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act (a “Demand Registration”"Rule 415 Offering") by delivering a written request therefor to if the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form)), except that:
(i) specifying if, after the number Primary AMR Ownership Reduction, upon receipt of Registrable Securities a registration request pursuant to this Section 2(a), the Company is advised in writing setting forth specific reasons (with a copy to the person requesting registration pursuant to this Section 2(a)), by a nationally recognized independent investment banking firm selected by the Company that, in such firm's opinion, a registration at the time and on the terms requested would materially and adversely affect any underwritten public equity financing by the Company that had been contemplated by the Company prior to receipt of notice requesting registration pursuant to this Section 2(a) and that had been planned to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt completed within 90 days of such demandnotice (a "Transaction Blackout"), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be required to effect a registration pursuant to this Section 2(a) until the earliest to occur of (A) the abandonment of such registration financing, (includingB) 90 days after the completion of such financing, without limitation, appropriate qualification under applicable blue sky (C) the termination of any "hold back" or other state securities laws and appropriate compliance with applicable regulations issued under "lock up" period obtained by the Securities Act and any other governmental requirements or regulationsunderwriter(s) of the Registrable Securities that selected by the Company has been so requested to register; provided, however, that from any person in connection with such financing or (iD) 165 days after receipt by the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price Holder requesting registration of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering written notice of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall Transaction Blackout (together with the Holders proposing copy of the investment banking firm opinion referred to distribute their securities through such underwriting) enter into an underwriting agreement above in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that subsection (i)) (the representations written notice of such Transaction Blackout and warranties by, and the other agreements on the part of, the Company to and for the benefit a copy of the underwriter(s) shall also investment banking firm opinion must be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished given to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities requesting registration pursuant to be included in this Section 2(a) within 15 days of receipt of such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or request);
(ii) if, in after the case of an Underwritten OfferingPrimary AMR Ownership Reduction, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) while a registration requested request is pending pursuant to this Section 4.2 is deemed not to have been effected 2(a), the general counsel of the Company determines in good faith that (A) the filing of a registration statement would require the disclosure of material information that the Company has a bona fide business purpose for preserving as a Demand Registration confidential or (iiB) the registration requested pursuant Company then is unable to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registrationcomply with SEC requirements, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).be
Appears in 1 contract
Sources: Registration Rights Agreement (Sabre Group Holdings Inc)
Demand Registration. (a) Subject to the provisions hereof, at any time on or On and after the date that is 180 days after end of the Closing Date (as defined in the Merger Agreement)Earn Out Period, the Holders of Stockholders’ Representative may in his sole and absolute discretion request in a majority of Registrable Securities shall have the right to require written notice that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities registration statement under the Securities Act (or a “Demand Registration”) by delivering a written request therefor similar document pursuant to any other statute then in effect corresponding to the Company (iSecurities Act) specifying covering the number registration of any or all Registrable Securities to Stock held by the Stockholders; provided, that there must be included in such registration Registrable Stock having a minimum value of Ten Million Dollars ($10,000,000) (based on the then current market price of such Registrable Stock) or such lesser amount if it constitutes all of the Registrable Stock held by such Holder Shareholders participating in the registration (the “Registration Threshold”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or Holderssuch lesser amount if it constitutes all of the Registrable Stock held by such Shareholders participating in the registration, but in no event less than a minimum value of Five Million Dollars (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below$5,000,000), and if the Company is not eligible to register the sale or other disposition of Registrable Securities on Form S-3 (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawor a successor form). As soon as practicable after the Following receipt of such demandany notice under this Section 5.1, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued cause to be registered under the Securities Act and any other governmental requirements or regulations) of the all Registrable Securities Stock that the Company has been so Stockholders have requested be registered in a manner of disposition reasonably acceptable to register; providedthe Company, howeverincluding but not limited to, that an offering on a delayed or continuous basis pursuant to Rule 415 (ior any successor rule) under the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodAct.
(b) The offering of If the Company intends to have the Registrable Securities pursuant to such Demand Registration may be in the form Stock distributed by means of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval Stockholders shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the underwriter or underwriters. If any Stockholder who intends to sell Registrable Securities in the offering disapproves of the terms of the underwriting, such Stockholder may elect to withdraw all its Registrable Stock from the registration by written notice to the Company and the managing underwriter(sunderwriter. The underwriters shall be selected by the Company in its sole discretion.
(c) proposing Notwithstanding any provision of this Agreement to distribute their the contrary,
(i) the Company shall not be required to effect a registration pursuant to this Section 5.1 during the period starting with the date of filing by the Company of, and ending on a date 120 days following the effective date of, a registration statement pertaining to a public offering of securities through such Underwritten Offeringfor the account of the Company or on behalf of the selling stockholders under any other registration rights agreement which the Stockholders have been entitled to join pursuant to Section 5.2;
(ii) if the Board determines in good faith that it is in the best interests of the Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition, which underwriting agreement shall have indemnification provisions in substantially disposition, strategic alliance or financing transaction or other potential material event involving the form as Company or (B) to suspend the registration rights set forth in herein, the Company may (1) postpone the filing of any registration pursuant to this Section 4.9 5.1 and (2) suspend the rights of this Agreementany Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that (i) such periods of postponement and suspension may not exceed 120 days in the representations aggregate during any period of 12 consecutive months; and warranties by, and each Stockholder agrees in consideration of the other agreements obligations of the Company set forth herein to maintain any communication by the Company with respect to the postponement or suspension of the any registration pursuant to this Section 5.1 in confidence such that the Company may rely on the part ofsafe harbor provisions of Rule 100(b)(2)(ii) of Regulation FD under the Exchange Act with respect to such communications; provided, further, that in the event the Company shall give such notice, the Company to and for shall extend the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder period during which such registration statement shall be required to make any representations and warranties to, or agreements with, any underwriter maintained effective as provided in a Section 5.3(a) by the number of days by which the Company suspends such registration other than customary representations, warranties and agreements and statement; and
(iii) the liability of each Holder Company shall not be required to effect a registration pursuant to this Section 5.1 more than one time in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) twelve-month period and shall not be limited obligated to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made cause any audit to be undertaken in such Registration Statement, connection with any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to registration that the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall is not otherwise required to undertake at that time in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell connection with its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required obligations under the terms of such underwriting agreement. Securities Act, the Exchange Act and the rules and regulations thereunder.
(d) The Company shall not be obligated to effect or participate (a) and pay for more than two (2) Underwritten Offerings in any twelve (12) month periodthree registrations pursuant to this Section 5.1; provided, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed a registration requested pursuant to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company this Section 5.1 shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration for purposes of this Section 5.1(d) unless the Registration Statement relating thereto (i) it has been declared effective by the SECCommission, at least 75% of (ii) it has remained effective for the Registrable Securities requested to be included period set forth in the registration by the Holders are included in such registrationSection 5.3(a), and (iii) the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution offering of Registrable Securities thereunder Stock pursuant to such registration is or becomes the not subject of to any stop order, injunction or other order or requirement of the SEC or Commission (other than any other governmental or administrative agencysuch stop order, injunction, or if any court prevents or otherwise limits the sale other requirement of the Registrable Securities pursuant to the registration, and in each case less than all Commission prompted by any act or omission of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder holders of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aStock).
Appears in 1 contract
Demand Registration. (a) Subject Upon written notice to the provisions hereof, Issuer from one or more Holders at any time on or after the Effective Time (but not later than the date that is 180 two years after the Effective Time) (a "Demand Request") requesting that the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities, the Issuer shall prepare and, within 60 days after the Closing Date such request (as defined or 20 days in the Merger Agreementcase of the first such request), file with the Commission a registration statement with respect to such Registrable Securities and thereafter use its reasonable best efforts to cause such registration statement to be declared effective under the 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders of may collectively exercise their rights to request registration under this Section 2.01(a) on not more than three occasions (it being understood that a majority demand with respect to a two-tranche contemporaneous offering of Registrable Securities and related derivative securities shall have the right be deemed to require the Company be only one demand) (each such registration being referred to file herein as a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “"Demand Registration”");
(ii) by delivering the Issuer shall not be required to effect a written request therefor to Demand Registration hereunder unless the Company (i) specifying the number aggregate market value of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is registered pursuant to an Underwritten Offering (as defined below), and such Demand Registration is equal to or more than $100 million;
(iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not be permitted to make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less more than $5,000,000, once in any six-month period; and
(iiiv) the method of disposition requested by Holders will in connection with any Demand Registration may not be entitled to require a Rule 415 Offering without the Company to effect more than three (3) Demand Registrations Issuer's prior written consent, which consent shall be in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodIssuer's sole discretion.
(b) The offering Notwithstanding any other provision of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject this Agreement to the approval of the Companycontrary, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will requested by Holders pursuant to this Section 2.01 shall not be deemed to have been effected as a effected, and, therefore, not requested and the rights of each Holder shall be deemed not to have been exercised for purposes of paragraph (a) above, if such Demand Registration unless has not become effective under the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in 1933 Act or if such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that ifDemand Registration, after it has become effectivebecame effective under the 1933 Act, was not maintained effective under the 1933 Act (i) such Registration Statement other than as a result of the request of Holders, or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC Commission or any other governmental government agency or administrative agencycourt solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when all the Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement.
(c) The Issuer shall have the right to cause the registration of additional equity securities for sale for the account of the Issuer in the registration of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if such Holders are advised in writing (with a copy to the Issuer) by the lead or if any court prevents managing underwriter referred to in Section 2.03(b) that, in such underwriter's good faith view, all or otherwise limits a part of such Registrable Securities and additional equity securities cannot be sold and the inclusion of such Registrable Securities and additional equity securities in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the Registrable Securities and additional equity securities then contemplated, then Issuer shall be entitled to include in such registration only such number of additional equity securities, if any, which, when added to the Registrable Securities requested by the Holders pursuant to Section 2.01(a) above, would not exceed the registrationnumber of securities that can, and in the good faith view of such underwriter, be sold in such offering without so adversely affecting such offering.
(d) Within 10 days after delivery of a Demand Request by a Holder, the Issuer shall provide a written notice to each case less than Holder, advising such Holder of its right to include any or all of the Registrable Securities covered held by the effective Registration Statement are actually sold by the selling such Holder or Holders for sale pursuant to the Demand Registration Statement, or (ii) if, and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the case Demand Registration. Any Holder may, within 10 days of an Underwritten Offering, the Company fails delivery to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes Holder of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested notice pursuant to this Section 4.2 is deemed not 2.01(d), elect to have been effected as a so include Registrable Securities in the Demand Registration or (ii) by written notice to such effect to the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after Issuer specifying the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder number of Registrable Securities shall desired to be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of so included by such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Holder.
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at At any time on or and after the date of this Agreement, any Stockholders that is 180 days after on the Closing Date date a Demand (as defined in the Merger Agreement), the Holders hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of a majority of Registrable Securities shall have the right to require the Company to file (a Registration Statement registering “Demand”) for sale all or part of their respective Registrable Securities registration under the Securities Act of a number of Registrable Securities that equals or is greater than the Registrable Amount (a “Demand Registration”) by delivering a written request therefor and thereupon the Company will, subject to the Company (i) specifying the number terms of Registrable Securities to be included in such registration by such Holder or Holdersthis Agreement, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued as promptly as practicable under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 5.1(b); providedand
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, howeverbut subject to Section 5.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, that if any, to be so registered.
(b) A Demand shall specify: (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for aggregate number of Registrable Securities having an anticipated aggregate offering price of less than $5,000,000requested to be registered in such Demand Registration, (ii) the Holders will not be entitled intended method of disposition in connection with such Demand Registration, to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, extent then known and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering identity of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering Requesting Stockholder (an “Underwritten Offering”or Requesting Stockholders). In such caseWithin two (2) Business Days after receipt of a Demand, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 5.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five (together 5) Business Days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings requirements of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form a Demand as set forth in this Section 4.9 5.1(b).
(c) Each Demand Stockholder shall be entitled to an unlimited number of this Agreement; providedDemand Registrations until such time as such Stockholder Beneficially Owns together with its Affiliates less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, that (i) including, to the representations and warranties byextent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished reasonably acceptable to the Company by or on behalf of such Holder expressly for inclusion therein and Company.
(be) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate any Demand Registration (aA) more than two within ninety (290) Underwritten Offerings in any twelve (12) month period, and (b) in any days of a “firm commitment” Underwritten Offering during any lock-up period required by the underwriter(sin which all Stockholders were given “piggyback” rights pursuant to Section 5.2 (subject to Section 5.1(f)) in any prior underwritten offering conducted by the Company on its own behalf or on behalf and provided that at least 50% of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof such Stockholders to be included in such Demand Registration were included or (B) within ninety (90) days of any other Underwritten Offering pursuant to Section 5.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession, the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that does not exceed the filing or effectiveness of the registration statement relating to such Underwriters’ Maximum NumberDemand Registration would cause the disclosure of material, such non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 5.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be allocated pro rata among registered in connection with such Demand Registration would adversely affect the Holders thereof on marketability of the basis Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein in such Demand Registration by each the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Holder. No shares Stockholders requesting such Demand Registration on the basis of Common Stock the number of such securities held by any Person such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company proposes to sell; and (iii) third, all other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent securities of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities Company duly requested to be included in such registration statement, pro rata on the registration basis of the number of such other securities requested to be included or such other method determined by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement Company.
(g) Any investment bank(s) that will serve as an underwriter with respect thereto; providedto such Demand Registration or, however, that if, after it has become effective, (i) if such Demand Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected by the Company fails to provide Full Cooperation, then Stockholder participating in such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement that holds a number of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences Demand Registration constituting a plurality of this Section 4.2(d), each Holder of all Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of included in such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Demand Registration. (a) Subject to During the provisions hereofterm of this Agreement, at any time on or after upon ▇▇▇▇▇▇▇'▇ written request specifying the date that is 180 days after the Closing Date intended manner of disposition (as defined in the Merger Agreementa "Demand Notice"), IBC will use its best efforts to prepare and file with the Holders of a majority of Registrable Securities shall have the right to require the Company to file SEC, as expeditiously as possible, a Registration Statement registering on an available form for which IBC then qualifies and which legal counsel for IBC deems appropriate and which form is available for the sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included IBC Equity in such registration by such Holder or Holders, (ii) specifying whether accordance with the intended method of disposition distribution thereof is pursuant to permit an Underwritten Offering (as defined below), offering of some or all of the shares of IBC Equity then held by ▇▇▇▇▇▇▇ and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect cause such registration statement to become effective (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registera "Demand Registration"); provided, however, that with respect to proposed dispositions of IBC Equity to shareholders of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and IBC will cooperate and use their respective reasonable best efforts to obtain a "no-action letter" from the SEC allowing such dispositions without registration.
(ib) A Demand Registration will not be deemed to have occurred until it has become effective under the Holders shall not make Securities Act (unless ▇▇▇▇▇▇▇ delivers a request for Demand Notice and subsequently withdraws the Demand Notice, in which case such a Demand Registration under this Section 4.2(awill be deemed to have occurred unless ▇▇▇▇▇▇▇ agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by IBC); provided, however, that if, after a Demand Registration has become effective, the offering of IBC Equity pursuant to such Demand Registration is prohibited by any stop-order, injunction or other order or requirement of the SEC or other governmental agency or court, such Demand Registration will be deemed not to have occurred (unless such prohibition on the sale of the IBC Equity is based on actions or omissions of ▇▇▇▇▇▇▇, in which case such a Demand Registration will be deemed to have occurred unless ▇▇▇▇▇▇▇ agrees to pay all reasonable out-of-pocket expenses associated with such registration actually incurred by IBC).
(c) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders IBC will not only be entitled to require the Company obligated to effect more than three a total of five (35) Demand Registrations in the aggregate under this Agreement, Section 5.1 hereof and (iii) the Company will shall not be obligated under Section 5.1 hereof to effect more than one (1) Demand Registration in any twelve-month period (except that during each of the twelve-month periods commencing on the date hereof and on the fourth anniversary of this Agreement, ▇▇▇▇▇▇▇ shall be entitled to request up to two (2) Demand Registrations); provided, however, that IBC will not be required to register the IBC Equity pursuant to a Demand Notice under Section 5.1 hereof if at such time (i) the shares of IBC Equity which ▇▇▇▇▇▇▇ is requesting to be registered pursuant to Section 5.1 hereof constitute less than five percent (5%) of such class or series of the outstanding IBC Securities so requested to be registered or (ii) such Demand Notice is given within six (6) month periodmonths after the effective date of any other registration of any IBC Securities under the Securities Act.
(bd) The offering of the Registrable Securities pursuant to such If any Demand Registration may be in the form of involves an underwritten public offering, the first lead underwriter, and, subject to the last sentence of this Section 5.1(d), any other underwriter that will administer the offering (an “Underwritten Offering”). In will be selected by ▇▇▇▇▇▇▇; provided, however, that such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, shall be subject to the approval of IBC which approval shall not be unreasonably withheld. In the Companyevent there is one or more co-managers, the first such co- manager shall be selected by IBC, provided that such co-manager shall be subject to the approval of ▇▇▇▇▇▇▇, which approval shall not be unreasonably withheld or delayed withheld.
(e) If any Demand Registration involves an underwritten offering, then as many shares of IBC Securities that IBC elects may be included in such offering on the same terms and (ii) conditions as the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with IBC Equity; provided, however, that if the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations advises ▇▇▇▇▇▇▇ and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or reportIBC that, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any eventits judgment, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities shares proposed to be included in such registration exceeds the Underwriters’ Maximum Numberoffering should be limited, then (i) the Company shall so advise all Holders total number of Registrable Securities shares to be included in such Underwritten Offering offering will be determined by the managing underwriter(s) and IBC shall include in such offering (i) first, all the shares of IBC Equity that ▇▇▇▇▇▇▇ proposes to sell and (ii) second all the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person IBC Securities that IBC proposes to sell. Except as otherwise provided for in this Agreement or the First Registration Rights Agreement (as hereinafter defined), no person other than Registrable Securities held by the Holders ▇▇▇▇▇▇▇ shall be included in a permitted to offer any IBC Securities under any Demand Registration pursuant to this Section 5.1 without the prior written consent of the holders of a majority in interest of the Registrable Securities▇▇▇▇▇▇▇.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Shareholder Agreement (Interstate Bakeries Corp/De/)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require If the Company to file shall receive a Registration Statement registering for sale all written request by the DLJ Entities or part of their respective Registrable Securities Permitted Transferees (any such requesting Person, a "Selling Stockholder") that the Company effect the registration under the Securities Act (of all or a “Demand Registration”) by delivering a written request therefor to the Company (i) portion of such Selling Stockholder's Registrable Securities, and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)thereof, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, then the Company shall promptly give written notice of such requested registration (xa "Demand Registration") promptly notify all Holders from whom at least 5 days prior to the request for anticipated filing date of the registration has not been received statement relating to such Demand Registration to the Other Stockholders and (y) thereupon will use reasonable its best efforts to effect such effect, as expeditiously as possible, the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulationsof:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by the Selling Stockholders, then held by the Selling Stockholders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) subject to the Holders will not be restrictions set forth in Section 3.04, all other Registrable Securities of the same type as that to which the request by the Selling Stockholders relates which any Other Stockholder entitled to require request the Company to effect more than three an Incidental Registration (3as such term is defined in Section 5.02) Demand Registrations in pursuant to Section 5.02 (all such Stockholders, together with the aggregate under this AgreementSelling Stockholders, and (iiithe "Holders") has requested the Company will to register by written request received by the Company within 2 days after the receipt by such Holders of such written notice given by the Company, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered; provided that, subject to Section 5.1(d) hereof, the Company shall not be obligated to effect more than one (1) six Demand Registrations for the DLJ Entities; and provided further that the Company shall not be obligated to effect a Demand Registration unless the aggregate proceeds expected to be received from the sale of the Common Stock to be included in such Demand Registration, in the reasonable opinion of DLJMB exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand Registration would constitute the First Public Offering, or (y) $10,000,000 in all other cases. In no event will the Company be required to effect more than one Demand Registration within any six (6) four-month period.
(b) The offering Promptly after the expiration of the Registrable Securities pursuant 2-day period referred to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i5.1(a)(ii) the representations and warranties by, and the other agreements on the part ofhereof, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of will notify all the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) Demand Registration of the Company shall so advise all other Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein therein. The Selling Stockholders requesting a registration under this Section may, at any time prior to the effective date of the registration statement relating to such registration, revoke such request, without liability to any of the other Holders, by each providing a written notice to the Company revoking such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders request, in which case such request, so revoked, shall be included in considered a Demand Registration without unless the prior written consent participating Stockholders reimburse the Company for all costs incurred by the Company in connection with such registration, or unless such revocation arose out of the holders of a majority in interest fault of the Registrable SecuritiesCompany, in which case such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any Demand Registration.
(d) A registration will requested pursuant to this Section shall not be deemed to have been effected as a Demand Registration (i) unless the Registration Statement registration statement relating thereto (A) has been declared become effective by under the SEC, Securities Act and (B) has remained effective for a period of at least 75% 180 days (or such shorter period in which all Registrable Securities of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under registration have actually been sold thereunder); provided that if after any registration statement requested pursuant to this Agreement with respect thereto; provided, however, that if, after it has become effective, Section becomes effective (ix) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration statement is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or administrative agency, or if any court prevents or otherwise limits the sale and (y) less than 75% of the Registrable Securities pursuant to the registration, and included in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will statement has been sold thereunder, such registration statement shall not be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as considered a Demand Registration or (ii) if the registration requested pursuant to this Maximum Offering Size (as defined below) is reduced in accordance with Section 4.2 does not remain continuously effective until forty-five (455.1(e) days after the commencement of the distribution by the Holders such that less than 66 2/3% of the Registrable Securities covered of the Selling Stockholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company and the Selling Stockholders that, in its view, (i) the number of Registrable Securities requested to be included in such registration (including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the Registrable Securities owned by the Holders, in any such case, exceeds the largest number of securities which can be sold without having an adverse effect on such offering, including the price at which such securities can be sold (the "Maximum Offering Size"), the Company will include in such registration, then in the Company shall continue priority listed below, up to the Maximum Offering Size:
(A) first, all Benchmark Securities requested to be obligated registered by the Selling Stockholder and by all other DLJ Entities and their Permitted Transferees (allocated, if necessary for the offering not to effect a exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of shares of Registrable Securities requested to be registered);
(B) second, all Registrable Securities (other than Benchmark Securities) requested to be included in such registration by all DLJ Entities and their Permitted Transferees and any other Holder (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such DLJ Entities and their Permitted Transferees and such other Holders on the basis of the relative number of shares of Registrable Securities (excluding any Benchmark Securities) requested to be included in such registration); and
(C) third, any securities proposed to be registered by the Company.
(f) If, in connection with any Demand Registration pursuant to this Section 4.2 with respect to the Preferred Stock, any Selling Stockholder shall seek to transfer any Warrants together with shares of Preferred Stock, the Company shall at the request of any such Stockholder effect a registration of such Warrants to which the provisions of this Article 5 shall apply mutatis mutandis and a registration, pursuant to a shelf registration statement, so as to permit the resale of the Registrable Securities included in shares of Common Stock for which any Warrants so transferred may be exercisable. The Company shall maintain the effectiveness of any such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d)shelf registration statement, each Holder of Registrable Securities shall be permitted voluntarily and take all actions necessary to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing permit resale of such Demand Registration, provided that such registration nonetheless shall count Common Stock as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)may be required by applicable state securities laws.
Appears in 1 contract
Sources: Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Demand Registration. (a) Subject to The Company shall, upon the provisions hereof, written demand of the Buyer at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority acquisition of Registrable Securities shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or HoldersSecurities, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect such the registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued the "Demand Registration") under the Securities Act and any other governmental requirements or regulations) of the such number of Registrable Securities that held by the Buyer as shall be indicated in a written demand sent to the Company has been so requested to registerby the Buyer; provided, however, that the Company shall not be required to effect a Demand Registration if counsel for the Company reasonably acceptable to the Buyer shall deliver to the Buyer an opinion reasonably acceptable to counsel for the Buyer that, pursuant to Rule 144 under the Securities Act or otherwise, the Buyer can sell Registrable Securities proposed to be included in the Demand Registration without registration under the Act, without limitation as to the number of Registrable Securities that are proposed to be sold by the Buyer. The Company shall pay all expenses in connection with a Demand Registration. Upon receipt of the Buyer's written demand, the Company shall expeditiously (ibut in any event within 90 days) file a registration statement under the Act for the Registrable Securities and use its best efforts to have such registration statement declared effective as soon as practicable after the filing thereof; provided that (A) the Holders Company shall not make be required to cause any special audit to be undertaken in connection with any such registration and (B) the Company shall not be required to file any registration statement during any period of time (not exceeding 90 days) when (I) the Company is contemplating a request public offering of its securities and, in the judgment of the managing underwriter thereof (or the Company, if such offering is not underwritten) such filing would have a material adverse effect on the contemplated offering, (II) the Company is in possession of material information that it deems advisable not to disclose in a registration statement or (III) the Company is engaged in any program for the repurchase of voting securities of the Company. The Buyer shall have the right to select the underwriters for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten OfferingRegistration, subject to the approval of the Company, which approval shall will not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderswithheld.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).
Appears in 1 contract
Sources: Stock Purchase and Registration Rights Agreement (Group Technologies Corp)
Demand Registration. Rights
(a) Subject to the provisions hereoflimitations set out in Section 4.1(b) and the Intercap Lock- up Agreements, upon the written request (the “Demand Notice”) of an Intercap Shareholder (each an “Intercap Demanding Shareholder”), made at any time on and from time to time as long as the Intercap Shareholders, as a group, own, control or after the date that is 180 days after the Closing Date (as defined direct, directly or indirectly, in the Merger Agreementaggregate, at least 10% of the then-outstanding Shares, the Company will, subject to Applicable Securities Laws, Applicable U.S. Securities Laws and applicable stock exchange requirements, use reasonable commercial efforts to file one or more Registration Statements or prospectus supplements under any existing Registration Statement, if an offering shall be made contemporaneously in the United States, and take such other steps as may be reasonably necessary to facilitate an offering in Canada and the United States, if applicable, of all or any portion of the Shares held by the Intercap Demanding Shareholder and, in the Intercap Demanding Shareholder’s sole discretion but subject to Section 4.14, Shares held by any of the Released Shareholders that such Released Shareholders wish to Distribute and described in the Demand Notice (the “Qualifying Shares”), the Holders of a majority of Registrable Securities shall have the right plus any other Shares to require the Company be included in such Distribution pursuant to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act Section 4.1(g) (a “Demand Registration”). The Company and the Intercap Demanding Shareholder shall cooperate in a timely manner in connection with such disposition and the procedures in Schedule A of this Agreement shall apply.
(b) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined belowNotwithstanding Section 4.1(a), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts be obliged to effect such registration a Demand Registration:
(includingi) if, without limitationwithin any twelve-month period, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested already effected two (2) Demand Registrations pursuant to register; providedSection 4.1(a). For the purposes of this Subsection, however, that (i) the Holders a Demand Registration shall not make be considered as having been effected until (a) a receipt has been issued by, or deemed to be issued by, the applicable Canadian Securities Regulatory Authorities for a final prospectus pursuant to which the Qualifying Shares are to be Distributed, or (b) a prospectus supplement in connection with a base shelf prospectus is filed pursuant to which the Qualified Shares are to be Distributed. However, if an Intercap Demanding Shareholder withdraws or does not pursue a request for a Demand Registration under this Section 4.2(aafter (A) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, filing a preliminary prospectus pursuant to which the Qualifying Shares are to be Distributed or (iiB) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form entering into of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld enforceable bought deal letter or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting or agency agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise Demand Registration (provided that at such time the Company that is in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied compliance in all material respects with its obligations under this Agreement Agreement), then such Demand Registration shall be deemed to be effected. (ii) within 90 days after the date of completion of a previous Demand Registration; (iii) during the period starting 14 calendar days prior to and ending upon the expiry of any black-out periods applicable to the Company, except as may be otherwise agreed by the Company and the underwriters managing such offering; (iv) that is a Demand Registration in respect of Shares that would reasonably be expected to result in gross proceeds of less than $10 million; (v) in a jurisdiction outside any of the provinces and territories of Canada or the United States (unless otherwise agreed among the Company, the underwriters managing such offering and the Intercap Demanding Shareholder); or (vi) in the event that the Board (with respect thereto; providedIntercap Directors abstaining) determines in its good faith judgement that there is a Valid Business Reason (as defined below) and that it is, howevertherefore, that if, after it has become effective, (i) such in the best interests of the Company to defer the filing of a Prospectus and/or a Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or prospectus supplement under any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the existing Registration Statement, or (ii) ifif applicable, at such time, in which case the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration Company’s obligations under this Section 4.1 will be deemed deferred for a period of not to have been effected for purposes more than 90 calendar days from the date of clause (ii) receipt of the proviso to Section 4.2(a)Demand Notice; provided that such right of deferral may not be exercised more than once in any one (1) year period. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) For the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences purposes of this Section 4.2(d4.1(b)(vi), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a).“Valid
Appears in 1 contract
Sources: Side Letter to the Investor Rights Agreement (Docebo Inc.)
Demand Registration. (a) Subject to The Company may include in a Demand ------------------- Registration, Shares for the provisions hereofaccount of the Company, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have for the right to require account of the Company to file a Registration Statement registering Investor (which for sale purposes of this Agreement "account of the Investor" includes all or part Permitted Transferees) and Shares for the account of their respective Registrable Securities under other holders thereof exercising contractual piggyback rights, on the Securities Act (a “Demand Registration”) by delivering a written request therefor to same terms and conditions as the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether therein for the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) account of the Registrable Securities that Investor and the Company has been so requested to registerPermitted Transferees; provided, however, that -------- (i) if the Holders shall not make a request for a Demand Registration under this managing Underwriter or Underwriters of any underwritten offering described in Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require 2.1 have informed the Company to effect more than three (3) Demand Registrations in writing that it is their opinion that the aggregate under this Agreementtotal number of Shares which the Investor, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval and any such other holders intend to include in such offering is such as to materially and adversely affect the success of such offering, then (x) the number of Shares to be offered for the account of such other holders shall not be unreasonably withheld or delayed reduced (to zero, if necessary), in the case of this clause (x) pro rata in --- ---- proportion to the respective number of Shares requested to be registered and (iiy) thereafter, if necessary, the number of Shares to be offered for the account of the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (aif any) shall be limited reduced (to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statementzero, any such preliminary prospectusif necessary), final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal extent necessary to reduce the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the total number of securities proposed Shares requested to be included in such registration offering to the number of Shares, if any, recommended by such managing Underwriters (and if the number of Shares to be offered for the account of each such Person has been reduced to zero, and the number of Shares requested to be registered by the Investor exceeds the number of Shares recommended by such managing Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders number of Registrable Securities Shares to be included in such Underwritten Offering offered for the account of the Investor and the Permitted Transferees shall be reduced) and (ii) if the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does offering is not exceed such Underwriters’ Maximum Numberunderwritten, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person no other party (other than Registrable Securities held by other holders exercising contractual piggyback rights), including the Holders Company, shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed permitted to have been effected as a offer securities under any such Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Investor consents to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing inclusion of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)shares therein.
Appears in 1 contract
Sources: Registration Rights Agreement (Mariner Post Acute Network Inc)
Demand Registration. (a) Subject to (i) HEI shall have the provisions hereofright, at any time on or after the date that is 180 days after the Closing Date (as defined not more than four occasions in the Merger Agreement)aggregate, and no more frequently than once during any six-month period, and (ii) the Holders of Minority Stockholders as a majority of Registrable Securities group shall have the right (though such right need not be jointly exercised by the Minority Stockholders), on not more than two occasions in the aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of a Demand shall be deemed to be a single Demand for all purposes hereof), and no more frequently than once during any six-month period, to require the Company to file a Registration Statement registering register for offer and sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”"Demand") all or a portion of the Registrable Securities held by delivering a written request therefor such Stockholders, subject to the restrictions set forth herein; provided that no Stockholders shall be entitled to make a Demand hereunder unless the Registrable Securities subject to such Demand represent at least 7% of the aggregate shares of Company Common Stock then issued and outstanding and provided further that HEI shall exercise its Demands under subsection (i) specifying the number of Registrable Securities hereof prior to be included in such registration by such Holder or Holders, exercising any Demand as a Minority Stockholder under (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawhereof. As soon promptly as practicable after the receipt Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a "Demand Notice"), a copy of such demandwhich shall have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for offer and sale under the Securities Act Registrable Securities, subject to Section 4.1(b), the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (yi) use all reasonable best efforts to effect file as promptly as reasonably practicable with the Commission a Registration Statement relating to the offer and sale of the Applicable Securities on such form as the Company may reasonably deem appropriate (provided that the Company shall not, unless the Company otherwise determines, be obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) and, thereafter, (includingii) after the filing of an initial version of the Registration Statement, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued use reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act and any other governmental requirements or regulations) as promptly as practicable after the date of the Registrable Securities that the Company has been so requested to registerfiling of such Registration Statement; provided, however, that no Demanding Stockholder shall be entitled to be named as a selling securityholder in the Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Demanding Stockholder has made an Election. Subject to Section 4.1(b), the Company shall use reasonable efforts to keep each Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by such Demanding Stockholder for resales of Registrable Securities for an Effectiveness Period ending on the earlier of (i) 30 days from the Holders shall not make a request for a Demand Effective Time of such Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, Statement and (ii) such time as all of such securities have been disposed of by the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month periodselling securityholders.
(b) The offering Company shall have the right to postpone (or, if necessary or advisable, withdraw) the filing, or delay the effectiveness, of a Registration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registrable Securities pursuant Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to such Demand Registration may be not disclose in the form of an underwritten public offering (an “Underwritten Offering”). In such caseRegistration Statement a planned or proposed financing, (i) the Company may designate the managing underwriter(s) of the Underwritten Offeringacquisition or other corporate transaction or other material information, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with have determined in good faith that such disclosure is not in the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings best interests of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) its stockholders; provided that no one such postponement shall also be made to exceed 90 days in any six-month period and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of all such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) postponements shall not exceed 180 days in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementaggregate. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in advise the Demanding Stockholder of any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holderssuch determination as promptly as practicable after such determination.
(c) If, in In connection with an Underwritten Offeringunderwritten offering, if the managing underwriter(s) underwriter or underwriters advise the Company that in its or their reasonable opinion the number of securities proposed Applicable Securities subject to a Demand exceeds the number which can be included sold in such registration exceeds the Underwriters’ Maximum Numberoffering, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that Registration the number of Registrable Applicable Securities requested by that, in the Holders thereof to opinion of such managing underwriter or underwriters, can be included sold in such registration that does not exceed such Underwriters’ Maximum Numberoffering (provided that, such Registrable in the event of a joint Demand, the Applicable Securities to included shall be allocated pro rata among the Holders thereof Demanding Stockholders on the basis of the relative number of Registrable Applicable Securities each such Demanding Stockholder has requested to be included therein by each in such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable SecuritiesRegistration).
(d) The Company may include in any registration requested pursuant to Section 4.1(a) hereof other securities for sale for its own account or for the account of another Person, subject to the following sentence. In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities requested by the Demanding Stockholder, together with other securities for sale for the account of the Company or any other Person, to be registered exceeds the number which can be sold in such offering, the Company shall include in such Registration the number of Applicable Securities and other securities that, in the opinion of such managing underwriter or underwriters, can be sold in such offering as follows: (i) first, the Applicable Securities requested to be registered by the Demanding Stockholder and (ii) second, any other securities requested to be included in such Registration.
(e) A registration will not Demanding Stockholder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 4.1(b), or (iv) if such Demanding Stockholder is prevented pursuant to Section 4.1(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Stockholder shall nonetheless be deemed to have been effected as a (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand Registration unless (A) pursuant to clause (i) of the Registration Statement relating preceding sentence after the Commission filing fee is paid with respect thereto has been declared effective by or (B) pursuant to clause (iv) of the SEC, preceding sentence in circumstances where at least 7550% of the Registrable Applicable Securities requested to be included in such Registration by such Demanding Stockholder could have been included, and in each case, (x) the Company has not availed itself of Section 4.1(b) with respect to such Registration request or (y) the Company has availed itself of Section 4.1(b) and the withdrawal request is not made within 10 days after the termination of the suspension period occasioned by the Company's exercise of its rights under Section 4.1(b). If a Demanding Stockholder withdraws a Demand but the Company nevertheless determines to complete, within 30 days after such withdrawal, the Registration so requested as to securities other than the Applicable Securities, such Demanding Stockholder shall be entitled to participate in such Registration pursuant to Section 4.2, but in such case the Intended Offering Notice shall be required to be given to such Demanding Stockholder at least five business days prior to the anticipated filing date of the Registration Statement, or if such Registration Statement has already been filed, within 10 business days after receipt of the request to withdraw Demand from such Demanding Stockholder and such Demanding Stockholder shall be required to give the Piggy-back Notice no later than 3 business days after the Company's delivery of such Intended Offering Notice.
(f) In the event that any Registration pursuant to this Section 4.1 shall involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Company and shall be reasonably acceptable to the Demanding Stockholder, and the other co-lead underwriter shall be selected by the Demanding Stockholder, provided that, in the event of a joint Demand, the other co-lead underwriter shall be selected by a majority in interest (by reference to the number of Applicable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (iiRegistration) of the proviso Demanding Stockholders, and shall be reasonably acceptable to Section 4.2(a)the Company. If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until fortyAny additional co-five (45) days after the commencement of the distribution managing underwriters shall be selected by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)Company.
Appears in 1 contract
Demand Registration. (a1) Subject to A Holder of Registrable Securities (the provisions hereof“Initiating Holder”) may, at any time on and from time to time, provided that: (a) EV Metals has subscribed for at least an aggregate of US$4,000,000 of Shares in connection with the Offering; and (b) at such time, such Holder, collectively with its Affiliates, beneficially owns or after the date that is 180 days after the Closing Date exercises control or direction over 5% or more of all outstanding Shares (as defined in the Merger Agreementand provided such beneficial ownership or control was obtained without contravening applicable Securities Laws), the Holders of a majority of Registrable Securities shall have the right to require the Company to file one or more Prospectuses and take such other steps as may be reasonably necessary to facilitate a Registration Statement registering secondary offering in Canada, except for sale the province of Quebec, of all or part any portion of their respective Registrable Securities under the Securities Act Shares held by such Initiating Holder (a the “Demand Registration”) ), by delivering a giving written request therefor notice of such Demand Registration to the Company. The Company (i) specifying shall, subject to applicable Securities Laws, use its commercially reasonable efforts to file one or more Prospectuses under applicable Securities Laws in order to permit the number Offering of all or any portion of the Initiating Holder’s Registrable Securities requested to be included in such registration by Demand Registration. The Parties shall cooperate in a timely manner in connection with such Holder or Holders, secondary offering and the procedures in Schedule “A” shall apply.
(ii2) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall not be obliged to effect:
a) more than two Demand Registrations by any Holder in any 12-month period;
b) a Demand Registration in the event the Company reasonably determines in good faith that (xi) promptly notify all Holders from whom either (A) the request for registration has not been received and (y) use reasonable best efforts effect of the filing of a Prospectus would impede the ability of the Company to effect such registration consummate a significant transaction (including, without limitation, appropriate a financing, an acquisition, a restructuring or a merger), (B) there exists at the time material non-public information relating to the Company the disclosure of which would be detrimental to the Company or the qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) sale of the Registrable Securities would require premature disclosure of material non-public information, or information which might reasonably be regarded as material non-public information that the Company has been so requested a bona fide business purpose for preserving as confidential or (C) if applicable, require the Company to registerprepare and file new technical reports under NI 43 101 - Standards of Disclosure for Mineral Projects of the Canadian Securities Administrators; providedand (ii) it is therefore in the best interests of the Company to defer the filing of a Prospectus at such time; in which case the Company’s obligations under this Section 3.1 shall: (1) in respect of (A) and (B) of this Section be deferred for a period of not more than 90 days from the date of receipt of the request of an Initiating Holder or (2) in respect of (C) of this Section be deferred until the earlier of (i) the date the Company files new technical reports, which the Company shall use its commercially reasonable efforts to complete as soon as practicable or (ii) the date the Company files its next annual information form pursuant to NI 51-102 – Continuous Disclosure Obligations, provided in each case, however, that (i) the Holders Company shall not make a request for a Demand Registration under this Section 4.2(agive written notice to the Holder (x) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000its determination to postpone filing of the Prospectus and, (ii) the Holders will not be entitled subject to require compliance by the Company with Securities Laws, of the facts giving rise to effect more than three (3) Demand Registrations in the aggregate under this Agreement, reason for the postponement and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(sy) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter time at which it determines the reason for postponement to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed no longer exist and (ii) the Company shall not qualify any securities offered by the Company for its own account during such period;
c) a Demand Registration in respect of a number of Shares less than 1,000,000;
d) a Demand Registration before the 90th day following the date on which a receipt was issued to the Company with respect to any Prospectus filed by the Company; or
e) a Demand Registration during a period of management-imposed blackout.
(together with 3) Any request by the Holders proposing Initiating Holder pursuant to distribute their securities through Section 3.1(1) hereof shall (a) specify the number of Shares which such underwritingInitiating Holder intends to offer and sell, (b) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings express the intention of equity securities with such Initiating Holder to offer or cause the managing underwriter(soffering of such Shares, (c) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially describe the form as set forth in Section 4.9 nature or methods of this Agreement; provided, that (i) the representations proposed offer and warranties by, sale thereof and the other agreements on provinces and territories of Canada in which such offer shall be made, (d) contain the part of, undertaking of such Initiating Holder to provide all such information regarding its holdings and the proposed manner of distribution thereof as may be required in order to permit the Company to comply with all applicable Securities Laws, and for (e) specify whether such Offering and sale shall be made by an Underwritten Offering.
(4) In the benefit case of an Underwritten Offering initiated pursuant to this Section 3.1, the underwriter(s) Initiating Holder shall have the right to select the managing underwriter or underwriters of such Registrable Securities, provided, however, that such selection shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished reasonably satisfactory to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreementCompany. The Company shall not be obligated entitled to effect or participate (a) more than two (2) Underwritten Offerings retain counsel of its choice to assist it in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on fulfilling its own behalf or on behalf of the Holdersobligations under this Section 3.1.
(c5) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the The Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) have the Company will be obligated and required right to include in such Underwritten Offering only that number of any Demand Registration, Shares or other securities which are not Registrable Securities requested by the Holders thereof representing up to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis 15% of the number of Registrable Securities requested subject to be included therein by each such Holder. No shares Demand Registration, provided that, if the managing underwriter or underwriters impose a limitation on the number of Common Stock held by any Person Shares or on the number or kind of other than Registrable Securities held by the Holders shall securities which may be included in any such Offering because, in its or their reasonable judgment, such Registrable Securities may not be sold in an orderly manner within a Demand Registration without price range reasonably acceptable to the prior written consent Initiating Holder or marketing factors require the limitation of the holders number of securities which may be included in such Public Offering, such Offering shall be comprised of Shares selected according to the following priority:
a) first, the Registrable Securities offered by the Initiating Holder;
b) second, if there are additional securities which may be underwritten within a majority in interest price range reasonably acceptable to the Initiating Holder, considering marketing factors, without leading to undue repercussions on the Public Offering of the Registrable Securitiessecurities offered after taking into account the inclusion of all the securities required under paragraph (a) above, the securities the Company required to be included.
(d6) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in In the case of an Underwritten Offering, an Initiating Holder may participate in the negotiations of the terms of any underwriting agreement. An Initiating H▇▇▇▇▇’s participation in, and the Company’s completion of, the Underwritten Offering is conditional upon the Initiating Holder and the Company fails agreeing that the terms of any underwriting agreement are satisfactory to provide Full Cooperationthem, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)acting reasonably.
Appears in 1 contract
Sources: Investor Rights Agreement (International Battery Metals Ltd.)
Demand Registration. (a) Subject In the event that following the period the Holder is prohibited from selling the Registrable Securities by the provisions of the underwriting agreement relating to the provisions hereofInitial Public Offering, at any time on Holder or after the date that is 180 days after the Closing Date Holders (as defined in the Merger Agreement), the Holders of a majority i) desire to sell shares of Registrable Securities shall have owned by such Holder or Holders and (ii) an exemption from registration under the right Securities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), is not available to require enable the Holder or Holders to dispose of the number of shares of Registrable Securities it desires to sell at the time and in the manner it desires to do so, then upon the written request of any Holder or Holders requesting that the Company to file a Registration Statement registering for sale effect the registration under the Securities Act of all or part of their respective such Holder's or Holders' Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) and specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant thereof, but subject to an Underwritten Offering (as defined below)the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance the Company shall file with applicable law. As soon the Commission as promptly as practicable after the receipt of sending such demandnotice, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable its best efforts to effect such cause to become effective, a registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued statement under the Securities Act registering the offering and any other governmental requirements or regulationssale of:
(i) of the Registrable Securities that which the Company has been so requested to registerregister by such Holder or Holders; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, and
(ii) the Holders will not be entitled to require all other Registrable Securities which the Company has been requested to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) register by any other Holder thereof by written request given to the Company will not be obligated within 15 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities), all to effect more than one the extent necessary to permit the disposition (1in accordance with the intended method thereof as aforesaid) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant so to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreementregistered; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect file a registration statement relating to any registration request under this
Section 2(a) (A) unless the aggregate requests by the Holder or participate Holders for such registration cover not less than 5.0% of the outstanding Common Stock, (aB) with respect to more than two an aggregate of 3 registrations (2which shall be increased to an unlimited number of registrations if such additional registrations are effected on Form S-3 or any successor similar short-form registration statement) Underwritten Offerings in under this Section 2(a), (C) within a period of 180 days after the effective date of any twelve other registration statement relating to any registration request under this Section 2(a), or (12D) month periodif with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and (b) in any Underwritten Offering during any lock-up period required by regulations thereunder, or the underwriter(s) in any prior underwritten offering form on which the registration statement is to be filed, would require the conduct of an audit other than the regular audit conducted by the Company on at the end of its own behalf or on behalf fiscal year, in which case the filing may be delayed until the completion of such regular audit (unless the Holders requesting such registration agree to pay the expenses of the Holders.
(c) If, Company in connection with such an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person audit other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(aregular audit).
Appears in 1 contract
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined As --------------------- ------------------- provided for in the Merger Agreement)Section 2.2, the Company may include in a Demand Registration Equity Shares for the account of the Company, the other Holders of a majority of Registrable Securities shall have or other holders thereof exercising contractual piggy back or demand rights, on the right to require same terms and conditions as the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether therein for the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) account of the Registrable Securities that Holder commencing the Company has been so requested to registerDemand Registration; provided, however, that (i) if the managing Underwriter or Underwriters of any underwritten offering described in Section 2.1 have informed the Company in writing that it is their opinion that the total number of Equity Shares which the Company and the Holders and any other holders participating therein intend to include in such offering is such as to materially and adversely affect the success of such offering, then (x) the number of Equity Shares to be offered for the account of such other holders (if any) shall not make a request for a Demand Registration under be reduced (to zero, if necessary), in the case of this Section 4.2(aclause (x) for Registrable Securities having an anticipated aggregate offering price pro rata in proportion to the respective number of less than $5,000,000Equity Shares requested to be registered, (iiy) thereafter, if necessary, the Holders will not number of Equity Shares to be entitled to require offered for the account of the Company (if any) shall be reduced (to effect more than three (3zero, if necessary) Demand Registrations in the aggregate under this Agreement, and (iiiz) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such casethereafter, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part ofif necessary, the Company number of Equity Shares to and be offered for the benefit of the underwriter(s) shall also be made to and for the benefit account of the Holders proposing to distribute their securities through (including the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) commencing the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (aDemand Registration) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made reduced pro rata in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished proportion to the Company by or on behalf respective number of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal Equity Shares requested to be registered to the net proceeds extent necessary to such Holder (after deduction of all underwriters’ discounts and commissions) from reduce the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the total number of securities proposed Equity Shares requested to be included in such registration exceeds offering to the Underwriters’ Maximum Numbernumber of Equity Shares, then (i) the Company shall so advise all Holders of Registrable Securities to be included in if any, recommended by such Underwritten Offering managing Underwriters and (ii) if the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by offering is not underwritten, no other party, including the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum NumberCompany, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed permitted to have been effected as a offer securities under any such Demand Registration unless the Holder commencing the Demand Registration Statement relating thereto has been declared effective by consents to the SECinclusion of such Equity Shares therein, at least 75% of the Registrable Securities requested such consent not to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registration, and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)unreasonably withheld.
Appears in 1 contract
Demand Registration. (ai) Subject Upon each notice to the provisions hereofCompany by the Morgan Holders, at IronBr▇▇▇, ▇he Prudential Holders or the 1818/Progressive/ML Holders requesting the registration of a specified number of their Registrable Securities, the Company shall, as promptly as practicable and in any time on or after the date that is 180 event not later than 90 days after the Closing Date (as defined in Company's receipt of such notice, prepare and file with the Merger Agreement), Commission under the Holders of a majority of Registrable Securities shall have the right to require the Company to file Act a Registration Statement registering for sale all or part (including by means of their respective Registrable Securities a shelf registration pursuant to Rule 415 under the Securities Act (a “Demand Registration”"Shelf Registration Statement") by delivering if so requested in such notice (but, in the case of a written request therefor shelf registration, only if the Company is then eligible to use such a shelf registration and if Form S-2 or Form S-3 (or any successor forms) is then available to the Company (iCompany) specifying with respect to the number of Registrable Securities to be included in which such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below)notice relates, and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use its reasonable best efforts to effect cause such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Registration Statement to be declared effective at the earliest practicable date and appropriate compliance with applicable regulations issued under to prepare and make available a Prospectus meeting the requirements of Section 10(a) of the Securities Act and any other governmental requirements or regulationsproviding for the method of disposition determined pursuant to Section 1(a)(ii) of for such period as may be required by the Registrable Securities that Act, but in no event beyond the Company has been so requested to registerperiod specified in Section 1(a)(iii); provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated required to effect more than one any such registration within the period beginning on the effective date of a Registration Statement filed by the Company on its behalf or for the account of any other Person covering a firm commitment Underwritten Offering and ending on the later of (1A) Demand Registration in any six 90 days after such effective date and (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (iB) the Company may designate the managing underwriter(s) expiration of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(sunderwriters, if any, in connection therewith. Subject to Section 1(a)(iii) below, each of the Morgan Holders, the 18▇▇/▇▇▇gressive/ML Holders, the Prudential Holders and IronBrand may make two requests for registration pursuant to this Section 1(a)(i); provided that the number of such permissible requests shall be increased as set forth in Sections 1(c)(ii)(A) and 1(c)(iv) and provided no such holders shall be entitled to make such a request while any other Registration Statement (other than a Shelf Registration Statement) with the Commission is on file prior to its becoming effective or within 90 days after such a Registration Statement has been declared effective or in the case of a Shelf Registration Statement while such registration is on file prior to being declared effective until 90 days after such Registration Statement ceases to be effective.
(ii) If a request for registration is made pursuant to Section 1(a)(i), the Company shall promptly give written notice of such request to all Demand Holders who did not participate in such request; and each Demand Holders Group shall have the right, subject to Section 1(a)(iii), by giving written notice to the Company promptly (and in any prior underwritten offering conducted event within 30 days after such notice is given by the Company), to join in such request and to have included in the Registration Statement to be filed by the Company on its own behalf or on behalf pursuant to such request such number of Registrable Securities as such holders shall specify in such notice; and the method of distribution of the Holders.
(c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (iiRegistration Statement under Section 1(a)(i) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Registration without the prior written consent of selected by the holders of a majority in interest of the Registrable SecuritiesSecurities with respect to which the request for registration was made under Section 1(a)(i).
(diii) A registration will any Demand Holder Group which shall have given the Company a notice pursuant to Section 1(a)(i) above and all of whose shares requested to be included shall have been included in the Registration Statement at the time it is declared effective shall not be deemed to have been effected as a Demand Registration used one of its requests for registration (A) unless the Registration Statement relating with respect thereto has become effective and remained effective in compliance with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of such Registrable Securities have been declared effective disposed of in accordance with the intended methods of disposition by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included seller or sellers thereof set forth in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoRegistration Statement; provided, howeverthat, that ifsuch period need not exceed 180 days, (B) if after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder registration is or becomes the subject of interfered with by any stop order, injunction or other order or requirement of the SEC Commission or any other governmental agency or administrative agency, or if court for any court prevents or otherwise limits the sale of the Registrable Securities pursuant reason not attributable to the registration, Demand Holders and in each case less than all of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statementhas not thereafter become effective, or (iiC) if, if the conditions to closing specified in the case of an Underwritten Offeringunderwriting agreement, the Company fails to provide Full Cooperationif any, then entered into in connection with such registration will be deemed are not to have been effected for purposes satisfied or waived, other than by reason of clause (ii) a failure on the part of the proviso to Section 4.2(a). If Demand Holders.
(iiv) The Company may delay the filing of a registration Registration Statement requested pursuant to this Section 4.2 is deemed not 1(a) if, in its reasonable judgment, (A) the filing of such Registration Statement at such time would adversely affect or require the Company to have been effected as disclose in the Registration Statement a Demand Registration proposed financing, reorganization or recapitalization, or pending negotiations relating to a merger, consolidation, acquisition or similar transaction, or otherwise adversely affect the Company; or (iiB) financial statements meeting the registration requested requirements of Regulation S-X are not available at such time because of any such pending proposal or negotiations; provided, however, that the right of the Company pursuant to clauses (A) and (B) of this subsection (iv) to delay the filing of a Registration Statement shall not extend for more than 90 days from the date that notice is given pursuant to Section 4.2 does not remain continuously effective until forty-five (451(a)(i) days after requesting registration. The Company shall promptly give the commencement holders of Registrable Securities requesting registration thereof pursuant to Sections 1(a)(1) or 1(a)(ii) written notice of such determination, containing a general statement of the distribution by the Holders reasons for such postponement and an approximation of the Registrable Securities covered by such registration, then anticipated delay. If the Company shall continue to be obligated to effect so postpone the filing of a Registration Statement, any Demand Registration Holder Group requesting registration thereof pursuant to this Section 4.2 1(a)(i) shall have the right to withdraw the request for registration by giving written notice to the Company within 15 days after receipt of the Registrable Securities included in such registration. In circumstances not including the events described notice of postponement and, in the immediately two preceding sentences event of this Section 4.2(d)such withdrawal, each Holder such request shall not be counted for purposes of the requests for registration to which holders of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso are entitled pursuant to Section 4.2(a)1(a) hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (National Auto Finance Co Inc)
Demand Registration. (a) Subject to the provisions contained in this Section 2.1 and in Sections 5.1 and 5.2 hereof, at any Holder or group of Holders may, from time on or after to time following the date that which is 180 days after the Closing first (1st) anniversary of the Distribution Date (as defined in each, a “Requesting Holder” and collectively, the Merger Agreement“Requesting Holders”), the Holders of make a majority of Registrable Securities shall have the right to require request in writing (a “Demand Request”) that the Company to file a Registration Statement registering for sale all or part of their respective Registrable Securities effect the registration under the Securities Act of at least the Minimum Registrable Securities owned by the Requesting Holder(s) (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten Offering (as defined below), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. As soon as practicable after the receipt of such demand, the Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to register; provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The offering of the Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall event be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate effect:
(a) more than two four (24) Underwritten Offerings Demand Registrations in any twelve (12) month period, and ;
(b) in any Underwritten Offering Demand Registration during the period from sixty (60) calendar days prior to and sixty (60) calendar days after the date of effectiveness of any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
Registration Statement (c) If, in connection with an Underwritten Offering, the managing underwriter(s) advise the Company that in its or their reasonable opinion the number of securities proposed to be included in such registration exceeds the Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that number of Registrable Securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such Registrable Securities to be allocated pro rata among the Holders thereof on the basis of the number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by the Holders shall be included in a Demand Shelf Registration without the prior written consent of the holders of a majority in interest of the Registrable Securities.
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least 75% of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect theretoStatement); provided, however, that if, after it has become effective, the Company provided the Holders at least five (i5) Business Days’ notice of the initial filing of such Registration Statement or pursuant to Section 10.1 hereof; and
(c) any Demand Registration if the related offerShelf Registration Statement is then effective, and such Shelf Registration Statement may be utilized by the Requesting Holders for the offering and sale or distribution of all of their Registrable Securities thereunder is or becomes without a requirement under the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant Commission’s rules and regulations for a post-effective amendment thereto. Subject to the registration, provisions contained in this Section 2.1 and in each case less than all Sections 5.1 and 5.2 hereof, upon receipt of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offeringa Demand Request, the Company fails shall use its commercially reasonable efforts to provide Full Cooperationcause to be included in a Registration Statement on an appropriate form under the Securities Act, then such registration will be deemed filed with the Commission as promptly as practicable but in any event not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) a registration requested pursuant to this Section 4.2 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 does not remain continuously effective until later than forty-five (45) days after the commencement of the distribution by the Holders of the receiving a Demand Request, such Registrable Securities covered as may be requested by such registration, then the Requesting Holders in their Demand Request. The Company shall continue use its commercially reasonable efforts to cause any such Registration Statement to be obligated to effect a Demand Registration pursuant to this Section 4.2 of declared effective under the Registrable Securities included in Act as promptly as possible after such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) of the proviso to Section 4.2(a)filing.
Appears in 1 contract
Sources: Registration Rights Agreement (Octave Intelligence PLC)
Demand Registration. (a) Subject to the provisions hereof, at any time on or after the date that is 180 days after the Closing Date (as defined in the Merger Agreement)Restricted Term, the Holders Investor and any Permitted Transferee of the Investor (each a “Holder”) holding, collectively, a majority of the Registrable Securities then outstanding shall have the right to require the Company to file a Registration Statement registering for sale all or part of their respective the Shares held by or issuable to them (collectively, the “Registrable Securities Securities”) under the Securities Act (a “Demand Registration”) by delivering a written request therefor to the Company (i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the Company (an “Underwritten Offering (as defined belowOffering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable lawLaw. As soon as practicable after the receipt of such demand, the The Company shall (x) promptly notify all Holders from whom the request for registration has not been received and (y) use commercially reasonable best efforts to effect such registration (including, without limitation, appropriate qualification under applicable blue sky or other state securities laws Laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) of the Registrable Securities that the Company has been so requested to registerregister as soon as practicable (and in any case by the applicable Filing Date); provided, however, that (i) the Holders shall not make a request for a Demand Registration under this Section 4.2(a2.1(a) for Registrable Securities having an anticipated aggregate offering price of less than $5,000,000, (ii) the 25,000,000. The Holders will not shall be entitled to require the Company to effect more than three two (32) Demand Registrations in the aggregate under this Agreement, and (iii) the Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period.
(b) The If the offering of the Registrable Securities pursuant to such Demand Registration may be in the form of is an underwritten public offering (an “Underwritten Offering”). In such case, (i) the Company may designate shall select the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a co-managing underwriter to participate in the Underwritten Offering, subject to the approval of the CompanyHolders of a majority of the Registrable Securities to be sold in the Underwritten Offering, which such approval shall not to be unreasonably withheld withheld, conditioned or delayed delayed, and (ii) the Company shall (together with the Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form for underwriting agreements for firm commitment offerings by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 4.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in a registration other than customary representations, warranties and agreements and (iii) the liability of each Holder in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (a) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, any such preliminary prospectusProspectus, final prospectusProspectus, summary prospectusProspectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder expressly for inclusion therein and (b) shall not in any event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such Underwritten Offering. No Holder may participate in any such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any twelve (12) month period, and (b) in any Underwritten Offering during any lock-up period required by the underwriter(s) in any prior underwritten offering conducted by the Company on its own behalf or on behalf of the Holders.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) advise give written advice to the Company that in its or their reasonable opinion of the number of securities proposed to be included in which such registration exceeds should, in the opinion of the managing underwriter(s) of such registration, in light of marketing factors, be limited (an “Underwriters’ Maximum Number”), then the Company shall (i) the Company shall so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) the Company will be obligated and required to include in such Underwritten Offering only that registration the number of Registrable Securities securities requested by the Holders thereof to be included in such registration that does not exceed such Underwriters’ Maximum Number, such by all Holders of Registrable Securities to be allocated included in such Underwritten Offering, pro rata among the Holders thereof on the basis of the aggregate number of Registrable Securities requested to be included therein by each such Holder. No shares of Common Stock held by any Person other than Registrable Securities held by , and, subject to the Holders shall be included conditions set forth in Section 2.8 hereto, on a Demand Registration without the prior written consent of pari passu basis with the holders of a majority in interest contractual registration rights provided under (i) the Investor Agreement, dated as of April 2, 2018, by and between the Registrable SecuritiesCompany and Takeda Pharmaceutical Company Limited (the “Takeda Holders”) and (ii) the Share Purchase Agreement by and between the Company and C.P. Pharmaceuticals International C.V. dated as of May 6, 2016 (the “Pfizer Holders”).
(d) A registration will not be deemed to have been effected as a Demand Registration unless the Registration Statement relating thereto has been declared effective by the SEC, at least seventy five percent (75% %) of the Registrable Securities requested to be included in the registration by the Holders are included in such registration, and the Company has complied in all material respects with its obligations under this Agreement with respect thereto; provided, however, that if, after it has become effective, (i) such Registration Statement or the related offer, sale or distribution of Registrable Securities thereunder is or becomes the subject of any stop order, injunction or other order or requirement of the SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of the Registrable Securities pursuant to the registrationregistration (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement and is not cured within forty five (45) days thereof, and (ii) in each case less than all seventy five percent (75%) of the Registrable Securities covered by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (ii) if, in the case of an Underwritten Offering, the Company fails to provide Full Cooperation, then such registration will be deemed not to have been effected for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a). If (i) a registration requested pursuant to this Section 4.2 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 4.2 2.1 does not remain continuously effective until forty-five (45) days after the commencement completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration pursuant to this Section 4.2 2.1 of the Registrable Securities included in such registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 4.2(d2.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration at any time prior to the commencement of marketing of such Demand Registration, provided that such registration nonetheless shall count as a Demand Registration for purposes of clause (ii) the last sentence of the proviso to Section 4.2(a2.1(a).
Appears in 1 contract