Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of: (i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering; (ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and (iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered. (b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b). (c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. (d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company. (e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4. (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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company. (g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 4 contracts
Sources: Stockholders Agreement (Moelis & Co), Shareholder Agreement (Moelis & Co), Stockholders Agreement (Moelis & Co)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit If one or more Holders that own an aggregate of 51% or more of the Company to cause any filings required hereunder to be filed on Registrable Securities then outstanding (the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting StockholderDemanding Holders”) shall be entitled to at any time make a written request of to the Company, the Company (shall cause there to be filed with the Commission a “Demand”) for registration under statement meeting the requirements of 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”), and each Demanding Holder shall be entitled to have included therein (subject to Section 2.7) all or such number of such Demanding Holder’s Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within six (6) months prior to the date of such request a Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Secretary of the Company, and thereupon shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to one hundred twenty (120) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer or Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company willor any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, subject however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the terms filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Agreement, use its reasonable best efforts Section 2.1 during the 24 month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration as of any Registrable Shares, the Company shall promptly as practicable give written notice of such proposed registration to all Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder’s Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the “Initiating Substantial Holder”), shall be entitled to have all or any number of such Initiating Substantial Holder’s Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of(a “Shelf Registration”). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company’s best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company’s best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to two hundred seventy (270) days or until such earlier date as of which all the Registrable Securities which under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than three Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company has shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been so requested satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to register by the Requesting Stockholders Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of two hundred seventy (270) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on Form S-3 and permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition stated specified in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register request pursuant to Section 6.1(b); and
(iii2.1(i) or Section 2.2, respectively. The Company agrees to file all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, reports required to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SECCommission in a timely manner so as to remain eligible or become eligible, as the case may be, and thereafter to maintain its eligibility, for the use of Form S-3. If the Company is not eligible at any time after the date hereof to use Form S-3, in order to fulfill its obligations under Section 2(i) the Company shall file a Registration Statement on Form S-1 or other appropriate form and not later than five (5) business days after the Company first meets the registration eligibility and transaction requirements for the use of Form S-3 for registration of the offer and sale by the Investors, the Company shall file a Registration Statement on Form S-3 with respect to the Registrable Securities covered by the Registration Statement on Form S-1 or other form filed pursuant to Section 2(i) (and include in such Registration Statement on Form S-3 the information required by Rule 429 under the Securities Act) or convert the Registration Statement on Form S-1 or other form, whichever is applicable, filed pursuant to Section 2(i) to a Form S-3 pursuant to Rule 429 under the Securities Act and cause such Registration Statement (or such amendment) to be declared effective no later than ninety (90) days after the date of filing of such Registration Statement (or amendment). Notwithstanding the foregoing, the Company shall use its commercially reasonable efforts to meet the requirements of Form S-3 for so long as any Registrable Securities remain outstanding and under no circumstances shall the Company be obligated to file a Registration State on any form other than Form S-3 to fulfill ist obligations under Section 2.2.
2.6. If any registration pursuant to Section 2 involves an underwritten offering (whether on a “firm”, “best efforts” or “all reasonable efforts” basis or otherwise), or an agented offering, the Majority Selling Holders, or the Initiating Substantial Holder, as the case may be, shall have the right to select the underwriter or underwriters and manager or managers to administer such underwritten offering or the placement agent or agents for such agented offering; provided, however, that each Person so selected shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e)2.7. In addition, Whenever 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 effect a registration statement for any Demand Registration pursuant to this Section 2 in connection with an underwritten offering by one or more Selling Holders of Registrable Securities: (but no more than twice, or for i) if such Selling Holders have requested the inclusion therein of more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 class of Registrable Securities held by Securities, and the Requesting Stockholders shall have the right to withdraw Underwriters’ Representative or Agent advises each such Demand Selling Holder in accordance with Section 6.4.
(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, writing that, in its opinion, the inclusion of all more than one class of the securities, including securities of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration Securities would adversely affect such offering, the marketability Demanding Holders holding at least a majority of the Registrable Securities sought proposed to be sold pursuant theretotherein by them, 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 decide which class of Registrable Securities shall be included therein in such offering and the related registration, and the other class shall be excluded; and (ii) if the Underwriters’ Representative or Agent advises each such Selling Holder in writing that, in its opinion, the amount of securities requested to be included in such Demand Registration offering (whether by Selling Holders or others) exceeds the Stockholders, which, in the opinion of the underwriter amount which can be sold without adversely affecting in such offering within a price range acceptable to the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) secondMajority Selling Holders, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to shall be included in such registration statementoffering and the related registration, to the extent of the amount which can be sold within such price range, and on a pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companyamong all Selling Holders.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 4 contracts
Sources: Registration Rights Agreement (Gleacher & Company, Inc.), Investment Agreement (Gleacher & Company, Inc.), Investment Agreement (First Albany Companies Inc)
Demand Registration. (a) At any time and from time to time on or after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit on which the Company has publicly announced that it has entered into a letter of intent or made a comparable announcement with respect to cause any filings required hereunder to be filed on a Business Combination, the 180th day after Subscribers or their respective transferee(s) holding 75% of the date hereof or (ii) as is permitted Registrable Securities held by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to all Subscribers may make a written request of the Company (a “Demand”) demand for registration under the Securities Act of a number all or part of their Registrable Securities that, when taken together with (a "DEMAND REGISTRATION"). Any demand for a Demand Registration shall specify the number of Registrable Securities requested proposed to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) sold and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofmethod(s) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number distribution thereof. The Company will notify all holders of Registrable Securities requested of the demand, and each holder of Registrable Securities who wishes to be registered include all or a portion of such holder'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 Company within fifteen (15) days after the receipt by the holder of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration. The Company shall, as expeditiously as possible, and in any event within sixty (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (560) days after receipt of a request for a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply prepare and file with the requirements of SEC a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be registration statement on such registration any form of the SEC for which the Company is eligible as then qualifies or which counsel for the Company shall deem appropriate and which form shall be selected by available for the Requesting Stockholders, including, sale of all Registrable Securities to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company be registered thereunder in accordance with the SECintended method(s) of distribution thereof, and shall be reasonably acceptable use its best efforts to cause such Registration Statement to become effective as promptly as practicable, but in no event prior to the Company.
(e) consummation of the Business Combination. The Company shall not be obligated to effect any more than two Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering Registrations in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number respect of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4Securities.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 4 contracts
Sources: Subscription Agreement (Alpha Security Group CORP), Subscription Agreement (Alpha Security Group CORP), Subscription Agreement (Alpha Security Group CORP)
Demand Registration. (a) At Subject to the provisions hereof, at any time on or after the date that is one hundred and eighty (180) 180 days after the date hereof Closing Date (or such earlier date (i) as would permit defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof file a Registration Statement registering for sale all or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request part of the Company (a “Demand”) for registration their respective Registrable Securities 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (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 terms receipt of this Agreementsuch 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 the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by register; provided, however, that (i) the Requesting Stockholders Holders shall not make a request for disposition in accordance with the intended method a Demand Registration under this Section 4.2(a) for Registrable Securities having an anticipated aggregate offering price of disposition stated in such Demand which may be an Underwritten Offering;
less than $5,000,000, (ii) all other Registrable Securities which the Holders will not be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) all Class A Shares which the Company may elect will not be obligated to register effect more than one (1) Demand Registration in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition six (in accordance with the intended methods thereof6) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredmonth period.
(b) A The offering of the Registrable Securities pursuant to such Demand shall specify: Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the aggregate number Company may designate the managing underwriter(s) of Registrable Securities requested 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 registered 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 Demand RegistrationUnderwritten 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) the intended method of disposition no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in connection with such Demand Registrationa registration other than customary representations, to the extent then known warranties and agreements and (iii) the identity liability of the Requesting Stockholder 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 Requesting Stockholders). Within five (5) days after receipt of a Demandbased 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 shall give written notice by or on behalf of such Demand to all other Stockholders. Subject to Section 6.1(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 Holder expressly for inclusion therein within ten and (10b) days 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 Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form disposition of the SEC for which 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 Company is eligible as shall be selected by basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any Demand Registration twelve (A12) within ninety month period, and (90b) days of a “firm commitment” in any Underwritten Offering during any lock-up period required by the underwriter(s) in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% 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 such Stockholders the Holders thereof to be included in such Demand Registration were includedregistration that does not exceed such Underwriters’ Maximum Number, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 registered in connection with such Demand Registration would adversely affect allocated pro rata among the marketability Holders thereof on the basis of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to 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 such 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 StockholdersSEC, which, in the opinion at least 75% of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly Registrable Securities requested to be included in the registration by the Holders are included in such registration statementregistration, pro rata on and the basis 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 number SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of such other securities requested the Registrable Securities pursuant to be included or such other method determined the registration, and in each case less than all of the Registrable Securities covered by the Company.
effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (gii) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration orif, if such Demand Registration is not in the case of an Underwritten Offering, any investment bank engaged in connection therewiththe Company fails to provide Full Cooperation, shall then such registration will be selected deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) by Holdings, for so long a registration requested pursuant to this Section 4.2 is deemed not to have been effected as the Secondary Class B Condition is satisfied, and thereafter 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 Stockholder participating in Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number 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 constituting a plurality at any time prior to the commencement of all Registrable Securities included in 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) At any time after the date that is one hundred and eighty (180) days after six month anniversary of the date hereof (or such earlier date (i) as would permit consummation by the Company to cause any filings required hereunder to be filed on of the 180th day after IPO, if the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) Company shall be entitled to make receive a written request of from either or both Sponsors holding outstanding Registrable Securities for itself and its respective Co-Invest Vehicles (such requesting Persons, the “Requesting Shareholders”) that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or any portion 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 Permitted Transferees who are StockholdersShareholders’ Registrable Securities, equals or is greater than and specifying the Registrable Amount intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least ten (10) days prior to the anticipated filing date of the Registration Statement relating to such Demand Registration to the other Sponsor, if applicable, and any other Shareholder that holds Registrable Securities, and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so Requesting Shareholders have requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;registration under this Section 4.01, and
(ii) subject to the restrictions set forth in Section 4.01(d), all other Registrable Securities which that any other Shareholders that hold Registrable Securities (all such Shareholders, together with the Requesting Shareholders, the “Registering Shareholders”) have requested the Company has been requested to register by request received by the Company within five (5) Business Days after any non-initiating Sponsor received the Company’s notice of the Demand Registration, or any other Shareholder pursuant to and in accordance with Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities4.02, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
; provided that no Person may participate in any Registration Statement pursuant to this Section 4.01(a) unless such Person agrees to sell their Registrable Securities to the underwriters selected as provided in Section 4.05(f) on the same terms and conditions as apply to the Requesting Shareholders; provided, further, that no such Registering Shareholders shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (bor indemnities with respect thereto) A Demand shall specify: as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and 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 Shareholders as may be reasonably requested; provided, further, 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 such Person will be in proportion thereto; provided, further, that such liability will be limited to the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration; provided, further, that, notwithstanding anything to the contrary herein, the number of Registrable Securities that a Shareholder may request to include in a Demand Registration (including pursuant to Section 4.02) cannot exceed the number of Registrable Securities, determined by multiplying the aggregate number of Registrable Securities requested held by such Shareholder by a fraction, the numerator of which is the number of Registrable Securities that the Requesting Shareholder proposes to be registered sell in such Demand Registration and the denominator of which is the total number of Registrable Securities held by such Requesting Shareholder prior to such Demand Registration, and provided, further, that the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be received from the sale of the Registrable Securities requested to be included by all Registering Shareholders in such Demand Registration are at least $25,000,000.
(iib) At any time prior to the intended method effective date of disposition the Registration Statement relating to such registration, a majority of the Requesting Shareholders (measured by the number of Registrable Securities proposed to be sold by all Requesting Shareholders and not by the number of Requesting Shareholders) may revoke such request without liability to any of the other Registering Shareholders, by providing a notice to the Company revoking such request. The decision as to whether to consummate and as to the terms of any Demand Registration shall be made by a majority of the Requesting Shareholders (measured by the number of Registrable Securities proposed to be sold by all Requesting Shareholders and not by the number of Requesting Shareholders) in their sole and absolute discretion.
(c) The Company shall be liable for and pay all Registration Expenses in connection with such each Demand Registration, regardless of whether such Registration is effected; provided that holders of Registrable Securities shall pay all underwriting discounts, selling commissions and share transfer taxes applicable to the extent then known sale of their respective Registrable Securities, but fees and disbursements of their respective counsel shall be borne and paid by the Company as a Registration Expense.
(iiid) If a Demand Registration involves a Public Offering and the identity of managing underwriter advises the Company and the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandShareholders that, in its view, the number of Registrable Securities that the Registering Shareholders and the Company shall give written notice 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 (the “Demand to all other Stockholders. Subject to Section 6.1(fMaximum Offering Size”), 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfiedregistration, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) firstpriority listed below, up to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.Maximum Offering Size:
Appears in 3 contracts
Sources: Shareholder Agreement (Avista Capital Partners III GP, L.P.), Shareholders Agreement (Osmotica Pharmaceuticals PLC), Shareholder Agreement (Osmotica Pharmaceuticals PLC)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit Subject to the conditions of this Section 2, if 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make receive a written request from the Purchasers of at least fifty percent (50%) of the Company Registrable Securities (a the “DemandInitiating Purchasers”) for then outstanding (whether or not issued) that the Company file a registration statement under the Securities 1933 Act or effect a registration for a public offering in the United States and/or in a jurisdiction or jurisdiction of a number Canada, covering the registration of at least twenty-five percent (25%) of the Registrable Securities thatthen outstanding (or a lesser percent if the anticipated aggregate offering price, when taken together with the number net of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholdersunderwriting discounts and commissions, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon would exceed $5,000,000), then the Company willshall, promptly, and in any event within twenty (20) days of the receipt thereof, give written notice of such request to all Purchasers, and subject to the terms limitations of this AgreementSection 2, use its reasonable best efforts to effect effect, as expeditiously as practicable, the registration as promptly as practicable under the 1933 Act or the Applicable Canadian Securities Act of:
(i) the Laws of all Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, Purchasers request to be so registered.
(b) A Demand . Such Registration Statement also shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registrationcover, to the extent then known allowable under the 1933 Act and the rules promulgated thereunder (iiiincluding Rule 416) or the identity Applicable Canadian Securities Laws, such indeterminate number of the Requesting Stockholder (additional shares of Common Stock resulting from stock splits, stock dividends or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities similar transactions with respect to which the Company has received a written request for inclusion therein within ten Registrable Securities. The Registration Statement (10and each amendment or supplement thereto) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled provided in accordance with Section 3(c) to the Purchasers and their counsel prior to its filing. The Company must effect an unlimited number of Demand Registrations until such time as registrations pursuant to this Section 2(a)(i), provided however, that the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of registration covering the number sale of Registrable Securities requested by such Stockholders to be included in such Demand Registration were includedfor an aggregate public offering price of less than $5,000,000, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 twicetwo (2) such registrations in any 12-month period, or for more than one hundred and twenty (120C) days in the aggregate, in any period of twelve registration at a time when it is keeping three (123) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4registrations effective.
(fii) The Company shall not include identify any securities other than Registrable Securities Purchaser as an underwriter in a Demand Registration, except with any Registration Statement or Prospectus filed pursuant to this Agreement without the prior written consent of Stockholders participating in such Demand Registration that hold a majority of Purchaser and the Prospectus shall contain (except if otherwise directed by any Purchaser whose Registrable Securities are included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand the 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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.Statement and
Appears in 3 contracts
Sources: Registration Rights Agreement (Glencore Holding Ag), Registration Rights Agreement (Polymet Mining Corp), Purchase Agreement (Polymet Mining Corp)
Demand Registration. (a) At any time after Except as provided in Section 2.2(b) below, upon the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Holders owning not less than ten percent (10%) of the Registrable Securities that the Company effect pursuant to this Agreement the registration of the resale of the Registrable Securities under the Securities Act (a “Demand”) for which request shall specify the Registrable Securities so requested to be 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 a number the resale of the Proposed Amount of Registrable Securities thatSecurities, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may request; provided, however that (i) if in the good faith judgment of the Board of Directors of the Company, such registration would be an Underwritten Offering;
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) all other Registrable Securities which the Company shall furnish to such Holders a certificate signed by an executive officer of the Company that the Board of Directors of the Company has been requested made such a determination and that it is, therefore, necessary to register pursuant defer the filing of such registration statement, then the Company shall have the right to Section 6.1(b); and
(iii) all Class A Shares defer such filing for the period during which such registration would be detrimental, provided that the Company may elect 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 register include in connection with any offering registration statement filed pursuant to this Section 2.2: (A) securities of Registrable Securitiesthe Company held by any other security holder of the Company, but subject and (B) in an underwritten public offering, securities of the Company to Section 6.1(f); all be sold by the Company for its own account, except as and to the extent necessary to permit that (x) in the opinion of the managing underwriter (if such method of disposition (in accordance with shall be an underwritten public offering), such inclusion would adversely affect the intended methods thereof) marketing of the Registrable Securities and to be sold by such Holders or (y) in the additional Class A Sharesreasonable opinion of such Holders owning a majority of the Proposed Amount of Registrable Securities (if such method of disposition is not an underwritten public offering), such inclusion would adversely affect the price at which such Registrable Securities may be sold pursuant to the plan of distribution; 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 any, 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 registeredas 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) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to take any action to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights registration requested by the Holders pursuant to Section 6.2 2.2(a) hereof (subject i) after the Company has effected two (2) such registrations pursuant to Section 6.1(f)) this Agreement and provided that at least 50% of the number of Registrable Securities requested by each such Stockholders to be included in such Demand Registration were includedregistration has been declared or ordered effective, (Bii) within ninety for a period of two (902) day of any other Underwritten Offering years after the Company has effected one such registration pursuant to Section 6.3(e). In addition2.2(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 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 has filed a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness with respect thereto by reason of the registration statement relating to such Demand Registration would cause the disclosure refusal 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 held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 6.4.
(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 Holders owning 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 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 is not an Underwritten Offering, a nationally recognized investment bank engaged Expenses in connection with such Demand Registrationregistration, (ii) advises the Companyif after it has become effective such registration is interfered with by any stop order, in writing, that, in its opinion, the inclusion of all injunction or other order or requirement of the securitiesSEC or other governmental agency or court for any reason other than a misrepresentation or an omission by the Holders, including securities of or (iii) if the Company that are not Registrable Securities, sought conditions to be registered closing specified in the purchase agreement or underwriting agreement entered into in connection with such Demand Registration would adversely affect the marketability registration are not satisfied other than by reason of the Registrable Securities sought to be sold pursuant theretosome wrongful act or omission, then the Company shall include or act or omission 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) firstbad faith, up to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanyHolders.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
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) At If at any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit Lockup Date, 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make receive a written request of from the Investor that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or any portion of the Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by specified in such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount written request (a “Demand Registration”) and thereupon ), specifying the information set forth under Section 6.4(i), then the Company willshall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the terms of this Agreementrestrictions in Section 6.1(e), use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) of the Registrable Securities for which the Company Investor has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to registration under this Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities6.1, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered, provided, that the Company shall not be required to effect (i) more than one such Demand Registration in any six month period and (ii) more than two (2) such Demand Registrations in total.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, At any time prior to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness date of the registration statement relating to such registration, the Investor may revoke such Demand Registration would cause the disclosure of material, non-public information that request by providing a notice to the Company has a bona fide business purpose revoking such request, provided, that such Demand Registration shall count as having been effected for preserving as confidential. In purposes of the event proviso to Section 6.1(a) above unless the Investor pays all Registration Expenses in connection with such revoked Demand Registration within thirty (30) days of a postponement written request therefor by the Company of the filing or effectiveness of a registration statement for Company.
(c) For any Public Offering relating to a Demand Registration, the holders Company shall select, with the consent of a majority the Investor (not to be unreasonably withheld, delayed or conditioned), the lead underwriter and any additional underwriters in connection with 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 held by the Requesting Stockholders shall have the right to withdraw in any such Demand in accordance with Section 6.4Public Offering.
(fd) The Company shall not include any securities other than Registrable Securities in If a Demand Registration, except with Registration involves an underwritten Public Offering and 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 Registrationunderwriter(s) advises the Company, in writing, Company and the Investor that, in its opinionview, the inclusion of all of the securities, including securities of the 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 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 in such registration by the Investor, the Company and for the account of any other Persons exceeds the largest number of Registrable Securities 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 Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below)Investor; and
(ii) second, any securities proposed to be registered by the Company proposes or any securities proposed to sell; be registered for the account of any other Persons, with such priorities among them as the Company shall determine.
(e) 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 (iii365) thirdconsecutive 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), all other 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 duly requested to be included is in possession of material non-public information, the disclosure of which during the period specified in such registration statement, pro rata on notice the basis Company believes in good faith would not be in the best interests of the number 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 such other 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 construed as permitting the Investor to effect a Transfer of securities requested to be included or such other method determined that is otherwise prohibited by the Companyterms of this Agreement or any other agreement between the Investor and the Company or any of its Subsidiaries.
(g) Any investment bank(sNotwithstanding the foregoing, no Demand Registration shall count as having been effected for purposes of the proviso to Section 6.1(a) that will serve as an underwriter (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 respect to the SEC and the Investor revokes such Demand Registration orprior to such registration statement being declared effective, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by prior to the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number sale of at least 75% of the Registrable Securities included in the applicable registration relating to such Demand request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any 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 (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 comparable or successor form or forms or any similar short-form registration (“Short-Form Registration”), and such Short-Form Registration constituting will be a plurality “shelf” registration statement providing for the registration, and the sale on a continuous or delayed basis, of all the Registrable Securities included pursuant to Rule 415. Upon filing a Short-Form Registration, the Company 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 any shelf take-down by amending or supplementing the prospectus statement related to such Demand 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 no longer hold the Registrable Securities or until the time specified in Section 6.14 hereof. The Company will pay all Registration Expenses incurred in connection with any Short-Form Registration.
Appears in 3 contracts
Sources: Stockholder Agreement (China Investment Corp), Stock Purchase Agreement (China Investment Corp), Stockholder Agreement (Aes Corp)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request expiration of the Company (a “Demand”) for Restricted Period, the Sellers Representative may, on one occasion only, request registration under the Securities Act of the Registrable Securities held by him; provided, however, that no such registration request shall be permitted to be made at any time when all Registrable Securities then held by and issuable to the Founders may be sold under Rule 144 during any ninety (90) day period and the certificates evidencing such Registrable Securities bear no legends restricting the transfer thereof or may be issued or re-issued without such legends (and, to the extent such securities are issued in global form, bear an unrestricted CUSIP number or may be issued or re-issued bearing an unrestricted CUSIP number); provided further, however, that no such registration request shall be permitted to be made in connection with an underwritten offering in which the Registrable Securities would be sold to an underwriter or underwriters for reoffering to the public; and provided further, however, that no such registration request shall be permitted to be made at any time after the Parent has effected one (1) registration pursuant to this Section 13.21. Within ten (10) days after receipt of such a number registration request, the Parent shall give written notice of such requested registration to all other holders of Registrable Securities thatfor whom the Parent has current contact information and shall include in such registration all such Registrable Securities with respect to which the Parent has received written requests for inclusion therein within twenty (20) days after the transmission of the Parent’s notice. Within sixty (60) days after the receipt of such a request, when taken together the Parent shall prepare and file with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Parent, then on (i) Form S-1 or (ii) such other form of registration statement as is then available to effect a registration for resale of the Registrable Securities) (the “Registration Statement”) and thereafter shall use its reasonable best efforts to cause such Registration Statement to become effective. The Founders’ request(s) for registration shall specify the approximate number of Registrable Securities requested to be registered under registered, the Securities Act by anticipated per share price range for such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) offering and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated distribution. As used in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which this Section 13.21, the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities term “Founders” shall mean and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: include only (i) each of the aggregate number of Founders that then holds Registrable Securities requested to be registered in such Demand RegistrationSecurities, (ii) any bank or other institutional lender to any Founder to which such Founder collaterally assigns its rights under this Section 13.21 that (w) then holds Registrable Securities and (x) agrees to become bound by the intended method provisions of disposition this Agreement in connection accordance with such Demand RegistrationSection 13.21(k), to the extent then known and (iii) the identity of the Requesting Stockholder any transferee or assignee thereof to which any such bank or other institutional lender assigns its rights under this Agreement and that (or Requesting Stockholders). Within five (5y) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), the Company shall include in the Demand Registration covered by such Demand all then holds Registrable Securities with respect and (z) agrees 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 given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own 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 become bound by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days provisions of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 this Agreement in accordance with Section 6.413.21(k).
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (Blyth Inc)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit From and after six months after the Company Closing Date, the Holders of at least 55% of the Registrable Securities then outstanding (excluding any Shelf Shares) may notify Parent in writing that such Holders desire for Parent to cause any filings required hereunder up to all of such notifying Holders' Registrable Securities to be filed on registered for sale to the 180th public under the Act. Upon receipt of such written request, Parent will promptly notify in writing all other Holders of Registrable Securities of such request, which Holders shall within twenty days following such notice from Parent notify Parent in writing whether such persons desire to have up to all of the Registrable Securities held by each of them included in such offering. Parent will, promptly following the expiration of such twenty day after period, prepare and file subject to the date hereof provisions of this Section 10.02, and use its best efforts to prosecute to effectiveness, an appropriate filing with the SEC of a registration statement covering such Registrable Securities and the proposed sale or distribution thereof under the Act.
(ii) as is permitted by waiver under thereto or (B) would materially adversely affect the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request business or prospects of Parent in view of the Company (disclosures that may be required thereby of information about the business, assets, liabilities or operations of Parent theretofore disclosed; provided, however, that the filing of a “Demand”registration statement, or any supplement or amendment thereto, by Parent may be deferred pursuant to this Section 10.02(c) for registration under no longer than 180 days (but only once in every twelve month period) after the Securities Act delivery 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount demand notice.
(a “Demand Registration”iii) and thereupon the Company will, subject Notwithstanding anything in this Section 10.02(c) to the terms of this Agreement, use its reasonable best efforts contrary: (A) Parent shall not be required to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities pursuant to this Section 10.02(c) more than one time; and (B) Parent shall not be required to effect any such registration unless at least $1 million of Registrable Securities are to be sold in such registration (with such amount being determined based on the market price of the Parent Common Stock on the date of the initiating Holder(s) request). If any registration pursuant to this Section 10.02(c) is in the form of an underwritten offering, Parent will select and obtain the investment banker or investment bankers and manager or managers that will administer the offering, which investment bankers must offer terms which are reasonably competitive in the marketplace for similar size companies and similar offerings. Parent shall (together with all Holders proposing to distribute Registrable Securities through such underwriting) enter into an underwriting agreement, containing usual and customary terms, with the managing underwriter selected for such underwriting. If any holder of Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to Parent and the additional Class A Shares, if any, to managing underwriter. The Registrable Securities so withdrawn shall also be so registeredwithdrawn from registration.
(biv) A Demand shall specify: If any registration statement under this Section 10.02(c) is not declared effective (i) except as a result of Holders withdrawing Registrable Securities), then the aggregate number holders of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 may request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in an additional registration under this Section 6.1(b10.02(c).
(cv) For so long as the Secondary Class B Condition is satisfied, Holdings No registrations effected under this Section 10.02(c) shall be entitled to an unlimited number relieve Parent of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated obligations to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights registrations under, and pursuant to the terms of, Section 6.2 (subject to Section 6.1(f10.02(d)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 3 contracts
Sources: Merger Agreement (Smith Jack T), Merger Agreement (Palmer J N Family Partnership), Merger Agreement (Ladin William E Jr)
Demand Registration. (a) At Subject to the limitations contained in Section 2(b), at any time after the date that is one hundred and eighty (180) days three months after the date hereof Closing Date (or such earlier date (i) as 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 under the IPO Underwriting Agreement“Rights Effective Date”), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled Primary Holders may request by written notice delivered to make a written request of the Company (a “DemandDemand Notice”) for registration that the Company register under the Securities Act all or any portion of a number of the Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act then held by such Requesting Stockholder’s Permitted Transferees who are StockholdersPrimary Holders, equals or is greater than for sale in the Registrable Amount manner specified in such notice (including, but not limited to, an underwritten public offering) (a “Demand Registration”) and thereupon ). In each such case, the Company will, subject to Demand Notice shall specify the terms number of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities for which registration is requested and the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method proposed manner of disposition stated in of such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredsecurities.
(b) A The Company shall use its best efforts to file with the 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 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 specify: file such a shelf registration statement within fifteen (i15) days after receipt of 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 “Shelf Takedown”), 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 registered sold by the Primary Holders in such takedown have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of at least $10 million.
(f) If any Demand RegistrationRegistration of Registrable Securities is in the form of an underwritten public offering, the Primary Holders shall select and obtain one or more investment banking firms of national or regional reputation to act as the managing underwriter or underwriters of the offering; 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.
(iig) Upon the intended method demand of disposition 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 and not 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 sensible manner.
2.2 The obligations of the Company to effect, or to take any action to effect, a Demand Registration or an underwritten Shelf Takedown shall be limited as follows:
(a) In connection with the provisions of this Section 2, the Primary Holders may require the Company to effect no more than three (3) Demand Registrations or underwritten Shelf Takedowns in the aggregate in any 365 day period during the six (6) 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 RegistrationRegistrations at the request of the Primary Holders.
(b) 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 then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demandthat Registrable Securities are not covered by an effective shelf registration on Form S-3, the Company Primary Holders shall give written notice of such Demand be entitled to all other Stockholders. Subject to Section 6.1(f), demand that the Company shall include in effect such a shelf-registration, notwithstanding 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as limits set forth in this Section 6.1(b2(b) and no such demand for a shelf registration statement shall count against the limits set forth in this Section 2(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of 2.3 Notwithstanding any other Underwritten Offering pursuant to Section 6.3(e). In additionprovision of this Agreement, the Company shall be entitled have the right to postpone (upon written notice defer or suspend the filing or effectiveness of a registration statement relating to all Stockholdersany registration requested under Section 2(a) for a reasonable period of time not to exceed ninety (90) 90 days in succession the filing or the effectiveness of if a prior registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of materialCompany for an underwritten, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement offering by the Company of its securities was declared effective by the filing or effectiveness SEC less than 120 days prior to the anticipated effective date of a the requested registration.
2.4 No registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholders under this Section 2 shall have the right to withdraw such Demand in accordance with Section 6.4.
(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 relieve the Company that are not Registrable Securities, sought of its obligation (if any) 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 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 registrations of Registrable Securities requested pursuant to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanySection 3.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
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) At Subject to the provisions hereof, at any time on or after the date that is one hundred and eighty (180) 180 days after the date hereof (or such earlier date (i) as would permit Closing Date, the Holders of a majority of Registrable Securities shall have the right to require the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof file a Registration Statement registering for sale all or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request part of the Company (a “Demand”) for registration their respective Registrable Securities 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (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 terms receipt of this Agreementsuch 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 the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by register; provided, however, that (i) the Requesting Stockholders Holders shall not make a request for disposition in accordance with the intended method a Demand Registration under this Section 3.2(a) for Registrable Securities having an anticipated aggregate offering price of disposition stated in such Demand which may be an Underwritten Offering;
less than $5,000,000, (ii) all other Registrable Securities which the Holders will not be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) all Class A Shares which the Company may elect will not be obligated to register effect more than one (1) Demand Registration in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition six (in accordance with the intended methods thereof6) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredmonth period.
(b) A The offering of the Registrable Securities pursuant to such Demand shall specify: Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the aggregate number Company may designate the managing underwriter(s) of Registrable Securities requested 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 registered 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 Demand RegistrationUnderwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 3.9 of this Agreement; provided, that
(i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) the intended method of disposition no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in connection with such Demand Registrationa registration other than customary representations, to the extent then known warranties and agreements and (iii) the identity liability of the Requesting Stockholder 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 Requesting Stockholders). Within five (5) days after receipt of a Demandbased 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 shall give written notice by or on behalf of such Demand to all other Stockholders. Subject to Section 6.1(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 Holder expressly for inclusion therein within ten and (10b) days 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 Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form disposition of the SEC for which 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 Company is eligible as shall be selected by basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any Demand Registration twelve (A12) within ninety month period, and (90b) days of a “firm commitment” in any Underwritten Offering during any lock-up period required by the underwriter(s) in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% 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 such Stockholders the Holders thereof to be included in such Demand Registration were includedregistration that does not exceed such Underwriters’ maximum number, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 registered in connection with such Demand Registration would adversely affect allocated pro rata among the marketability Holders thereof on the basis of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to 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 such 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 StockholdersSEC, which, in the opinion at least 75% of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly Registrable Securities requested to be included in the registration by the Holders are included in such registration statementregistration, pro rata on and the basis 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 number SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of such other securities requested the Registrable Securities pursuant to be included or such other method determined the registration, and in each case less than all of the Registrable Securities covered by the Company.
effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (gii) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration orif, if such Demand Registration is not in the case of an Underwritten Offering, any investment bank engaged in connection therewiththe Company fails to provide Full Cooperation, shall then such registration will be selected deemed not to have been effected for purposes of clause (ii) of the proviso to Section 3.2(a). If (i) by Holdings, for so long a registration requested pursuant to this Section 3.2 is deemed not to have been effected as the Secondary Class B Condition is satisfied, and thereafter a Demand Registration or (ii) the registration requested pursuant to this Section 3.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Stockholder participating in Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number pursuant to this Section 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 3.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration constituting a plurality at any time prior to the commencement of all Registrable Securities included in 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 3.2(a).
Appears in 3 contracts
Sources: Voting Agreement (Cousins Properties Inc), Stockholders Agreement (Cousins Properties Inc), Voting Agreement (Parkway Properties Inc)
Demand Registration. (a) At If at any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date Partnership shall receive a Demand (as hereinafter defined) is made constitute Demand Stockholders written request (a “Requesting StockholderDemand Notice”) shall be entitled to make a written request of from the Company (a “Demand”) for Demand Committee that the Partnership effect the registration under the Securities Act of a number all or any portion of the Registrable Securities that, when taken together with specified in the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount Demand Notice (a “Demand Registration”) and thereupon ), specifying the Company willinformation 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 terms of this Agreementrestrictions in Section 2.2(d), use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) of the Registrable Securities for which the Company Demand Committee has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to registration under this Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities2.2, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, At any time prior to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness date of the registration statement relating to such registration, the Demand Committee may revoke such Demand Registration would cause request by providing a notice to the disclosure of material, non-public information that the Company has a bona fide business purpose Partnership revoking such request. The Partnership shall be liable for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a and pay all Registration Expenses in connection with any 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 6.4.
(fc) The Company shall not include any securities other than Registrable Securities in If a Demand Registration, except with Registration involves an underwritten Public Offering and 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, Partnership and the Demand Committee that, in its opinionview, the inclusion number of all of the securities, including securities of the 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 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 units of Registrable Securities requested to be included in such registration exceeds the 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 Offering Size”), the Partnership 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 StockholdersDemand Committee (allocated, whichif necessary for the offering not to exceed the Maximum Offering Size, in such proportions as shall be determined by the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowCommittee); ;
(ii) second, any securities proposed to be registered by the Company proposes Partnership or any securities proposed to sell; be registered for the account of any other persons, with such priorities among them as the Partnership shall determine.
(d) Upon notice to the Demand Committee, the Partnership may postpone effecting a registration pursuant to this Section 2.2 on up to three occasions during any period of six consecutive months for a reasonable time specified in the notice but not 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 (iii) third, all other adversely affect an offering of securities of the Company duly requested to be included in such registration statement, pro rata on Partnership the basis preparation of the number of such other securities requested to be included which had then been commenced or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating Partnership is in possession of material non-public information the disclosure of which during the period specified in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number notice the General Partner believes in good faith would not be in the best interests of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationthe Partnership.
Appears in 2 contracts
Sources: Registration Rights Agreement (Blackstone Group L.P.), Registration Rights Agreement (Blackstone Group L.P.)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit If the Company to cause any filings required hereunder to be filed on shall receive a written request from the 180th day after DLJMB Members (such requesting person, the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or any portion 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 Permitted Transferees who are StockholdersRegistrable Securities, equals or is greater than and specifying the Registrable Amount intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least fifteen (15) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so 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 register be registered by the Requesting Stockholders for disposition in accordance that any Stockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(iiRequesting Stockholders, the “Registering Stockholders”) all other Registrable Securities which have requested the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which by request received by the Company may elect to register in connection with any offering within ten (10) Business Days after such Stockholders receive the Company’s notice of Registrable Securitiesthe Demand Registration, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered; provided that, subject to Section 1.01(d) hereof, the Company shall not be obligated to effect (x) more than six Demand Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the 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) A Demand shall specify: Promptly after the expiration of the ten (i10) Business Day period referred to in Section 1.01(a)(ii) hereof, the aggregate 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 registered included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in such 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 registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the intended method Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity Registrable Securities of the Requesting Stockholder Stockholders sought to be included in such registration are included.
(or e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders). Within five (5) days after receipt of a DemandStockholders that, in its view, the number of Company shall give written notice 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 Demand to all other Stockholders. Subject to Section 6.1(foffering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfiedpriority listed below, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, up to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.Maximum Offering Size:
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 all Registrable Securities requested to be included in such Demand Registration registered by the StockholdersRegistering Stockholders (allocated, which, in if necessary for the opinion of offering not to exceed the underwriter can be sold without adversely affecting the marketability of the offeringMaximum Offering Size, pro rata among such Stockholders requesting such Demand Registration Members on the basis of the relative number of such securities held by 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 securities of the Company duly Registrable Securities so requested to be included in such registration statementby each); and
(ii) second, pro rata on the basis of the number of such other securities requested all Registrable Securities proposed to be included or such other method determined registered by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings LLC)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after six month anniversary of the date hereof (or such earlier date (i) as would permit consummation by the Company to cause any filings required hereunder to be filed on of the 180th day after IPO, if the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) Company shall be entitled to make receive a written request of from a Sponsor or Sponsors holding outstanding Registrable Securities (such requesting Persons, the “Requesting Stockholders”) that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or any portion 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 Permitted Transferees who are Stockholders’ Registrable Securities, equals or is greater than and specifying the Registrable Amount intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least ten (10) days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;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 which that any other Stockholders (all such Stockholders, together with the Requesting Stockholders, the “Registering Stockholders”) have requested the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which by request received by the Company may elect to register in connection with any offering within seven (7) days after such Stockholders receive the Company’s notice of Registrable Securitiesthe Demand Registration, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof 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 underwriters selected as provided in Section 7.05(f) on the same terms and conditions as apply to the Requesting Stockholders; provided, however, that no such Registering Stockholders shall be required to make any representations or warranties, or provide any indemnity, in connection with any such registration other than representations and warranties (or indemnities with respect thereto) as to (i) such Person’s ownership of his, her or its Registrable Securities to be transferred free and 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 additional Class A Sharesliability of each such Person will be in proportion thereto; and provided, if anyfurther, that such liability will be limited to, the net proceeds received by such Person from the sale of his, her or its Registrable Securities pursuant to such registration; provided that, the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds expected to be so registeredreceived from the sale of the Registrable Securities requested to be included by all Registering Stockholders in such Demand Registration are at least $25,000,000.
(b) A Demand shall specify: (iPromptly after the expiration of the seven-day period referred to in Section 7.01(a)(ii) hereof, the aggregate 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 registered included therein. At any time prior to the effective date of 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 such connection with each Demand Registration, (ii) the intended method regardless of disposition in connection with whether such Demand RegistrationRegistration is effected; provided that holders of Registrable Securities shall pay all underwriting discounts, selling commissions, and stock transfer taxes applicable to the extent then known sale of Registrable Securities, and (iii) fees and disbursements of counsel for any Stockholder, except for the identity fees and disbursements of the Stockholders borne and paid by the Company as a Registration Expense.
(d) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandStockholders that, in its view, the number of Registrable Securities that the Registering Stockholders and the Company shall give written notice 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 (the “Demand to all other Stockholders. Subject to Section 6.1(fMaximum Offering Size”), 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfiedregistration, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) firstpriority listed below, up to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.Maximum Offering Size:
Appears in 2 contracts
Sources: Stockholders Agreement (INC Research Holdings, Inc.), Stockholders Agreement (INC Research Holdings, Inc.)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after expiration of the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreementtransfer restrictions contained in Section 2.1(a), so long as the Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders Shareholder (a “"Requesting Stockholder”Shareholder") shall be entitled to make a written request of the Company (a “"Demand”") for registration under the Securities Act of a number an amount of Registrable Securities that, when taken together with the number amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are StockholdersShareholder's Affiliates, equals or is greater than the Registrable Amount (based on the number of Registrable Securities outstanding on the date such Demand is made) (a “"Demand Registration”") and thereupon the Company will, subject to the terms of this Agreement, use its commercially reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders Shareholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten OfferingDemand;
(ii) all other Registrable Securities which that the Company has been requested to register pursuant to Section 6.1(b5.1(b); and
(iii) all Class A Common Shares which that the Company may elect to register in connection with any offering of Registrable SecuritiesSecurities pursuant to this Section 5.1, but subject to Section 6.1(f5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Common Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder Shareholder (or Requesting StockholdersShareholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f5.1(g), 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b)initial Demand.
(c) For so long as the Secondary Class B Condition is satisfiedThe Shareholders, Holdings collectively, shall be entitled to an unlimited number aggregate of six (6) Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable AmountRegistrations.
(d) A Demand Registration shall not be deemed to have been effected and shall not count as a Demand (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least sixty (60) days (or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder), (ii) if, after it has become effective, such Demand Registration becomes subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason, (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such Demand Registration are not satisfied as a consequence of any act or omission by the 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 SEC for which the Company is eligible Commission as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(ef) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all StockholdersShareholders) for a reasonable period up to an aggregate of time not to exceed ninety (90) days in succession during any period of twelve (12) consecutive months the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 Shareholder(s) shall have the right to withdraw such Demand in accordance with Section 6.45.3.
(fg) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders Shareholders 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 independent investment bank engaged in connection with such Demand Registrationselected by the Company) 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 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 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 in such Demand Registration by the StockholdersShareholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders Shareholders requesting such Demand Registration on the basis of the number of such securities held requested to be included by such Stockholders Shareholders and such Stockholders Shareholders that are Piggyback Sellers (as defined below)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 number amount of such other securities requested to be included or such other method determined by the Company.
(gh) Any time that a Demand Registration involves an Underwritten Offering, the Company shall select the investment bank(s) banker or investment bankers and managers that will serve as an underwriter lead and co-managing underwriters with respect to the offering of such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationSecurities.
Appears in 2 contracts
Sources: Shareholder Agreement (Aircastle LTD), Shareholder Agreement (Aircastle LTD)
Demand Registration. (a) At any time and from time to time on and/or after the date that is one hundred Closing Date, each Holder shall severally have the option and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company right, exercisable by delivering a written notice to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders Parent (a “Requesting StockholderDemand Notice”) shall be entitled ), to make require Parent to, pursuant to the terms of and subject to the limitations contained in this Agreement, prepare and file with the Commission a written request Registration Statement registering the offering and sale of the Company (a “Demand”) for registration under the Securities Act of a number and type of Registrable Securities thaton the terms and conditions specified in the Demand Notice, when taken together with the number of Registrable Securities requested which may include sales on a delayed or continuous basis pursuant to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount Rule 415 pursuant to a Shelf Registration Statement (a “Demand Registration”) ). The Demand Notice must set forth the number of Registrable Securities that the Initiating Holder intends to include in such Demand Registration and thereupon the Company will, subject intended methods of disposition thereof. Notwithstanding anything to the terms of this Agreementcontrary herein, use its reasonable best efforts in no event shall Parent be required to effect the registration as promptly as practicable under the Securities Act of:
(i) effectuate a Demand Registration unless the Registrable Securities which of the Company has been so requested Holders to register by be included therein after compliance with Section 2.1(b) have an aggregate value of at least $200 million based on the Requesting Stockholders for disposition VWAP (the “Minimum Amount”) as of the date of the Demand Notice; provided, however, that the Minimum Amount shall not apply in accordance with the intended method event that, as the result of disposition stated in Cut Back Shares being removed from such Demand which may be an Underwritten Offering;
(ii) all other Registration Statement pursuant to this Section 2.1(a), the Registrable Securities which of the Company has been requested Holders to register pursuant to be included therein after compliance with Section 6.1(b); and
(iii2.1(b) have an aggregate value of less than $200 million. If at any time the Commission takes the position that some or all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, proposed to be included in a Registration Statement filed pursuant to a Demand Registration must be removed from such Registration Statement (such portion of the Registrable Securities, the “Cut Back Shares”) in order for all of the Registrable Securities in such 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 registeredelects, 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) A Demand shall specify: Within five Business Days (ior if the Registration Statement will be a Shelf Registration Statement, within two Business Days) after the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity receipt of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandDemand Notice, the Company Parent shall give written notice of such Demand Notice to all other Stockholders. Subject Holders and, within 30 days after receipt of the Demand Notice (except if Parent is not then eligible to Section 6.1(fregister for resale the Registrable Securities on Form S-3, in which case, within 90 days thereof), shall, subject to the Company limitations of this Section 2.1, file a Registration Statement in accordance with the terms and conditions of the Demand Notice, which Registration Statement shall include cover all of the Registrable Securities that the Holders shall in writing request to be included in the Demand Registration covered (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 2.1(b)). Parent shall use reasonable best efforts to cause such Demand all Registration Statement to become and remain effective (including using reasonable best efforts to file a Registration Statement including Registrable Securities with respect included on any previous Registration Statement that ceases to which be effective, which, for the Company has received a written request avoidance of doubt shall not be considered an additional Demand Registration for inclusion therein within ten any Holder pursuant to Section 2.1(c)) under the Securities Act until all such securities registered for resale thereunder cease to be Registrable Securities (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b“Effectiveness Period”).
(c) For so long Subject 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 Secondary Class B Condition 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 no event shall Parent be required to effect more than two Demand Registrations within a given calendar year, and (C) a subsequent Demand Registration pursuant to a Demand Notice if a Registration Statement covering all of the Registrable Securities held by the Initiating Holder shall have become and remains effective under the Securities Act and is satisfiedsufficient 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 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, Holdings in which case the Initiating Holder shall be entitled to an unlimited number of additional Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable AmountRegistration in lieu thereof.
(d) A Holder (and, if applicable, Carlyle) may withdraw all or any portion of its Registrable Securities included in a Demand Registrations Registration from such Demand Registration at any time prior to the effectiveness of 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 SEC for which the Company is eligible Commission (A) as shall be selected by Parent and (B) subject to applicable law and the Requesting Stockholdersrequirements of the Commission, includingas 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 extent permissibleRegistration Statement is on Form S-1, an automatically 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 registration statement or an existing effective registration statement filed by the Company with Commission (provided that Form S-1 is then available for sales on a delayed or continuous basis under the SECprovisions of Rule 415 in respect of such Demand Registration), 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 any offering and selling of Registrable Securities shall be reasonably acceptable registered on Form S-3 or any equivalent or successor form under the Securities Act (if available to Parent) and (Z) if at the Companytime 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 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.
(eg) The Company shall not be obligated to effect Without limiting Article III, in connection with any Demand Registration pursuant to and in accordance with this Section 2.1, Parent shall (A) within ninety promptly prepare and file or cause to be prepared and filed (901) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant such additional forms, amendments, supplements, prospectuses, certificates, letters, opinions and other documents, as may be necessary or advisable to Section 6.2 (register or qualify the securities subject to Section 6.1(f)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 provided that at least 50% of other documents as may be necessary to apply for listing or to list the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating subject to such Demand Registration would cause on the disclosure 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 material, non-public information that such Registrable Securities in accordance with the Company has a bona fide business purpose for preserving as confidential. 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 postponement by post-effective amendment to the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registration Statement unless (A) such Registration Statement includes only Registrable Securities held by the Requesting Stockholders shall 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 the right to withdraw been registered on (but not yet sold under) such Demand in accordance with Section 6.4.
(f) The Company shall not include any securities Registration Statement, other than Registrable Securities in a Demand Registrationthe Holder, except with the written consent of Stockholders participating in such Demand Registration that hold a majority Affiliates 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 Holder or transferees of the securities, including securities of the 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanyHolder.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (WildHorse Resource Development Corp), Registration Rights Agreement (Chesapeake Energy Corp)
Demand Registration. (a) At The Company hereby agrees that at any time after one year from the date Closing Date the Purchaser may request that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on effect the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number 1933, as amended (the "Securities Act") of Registrable Securities thatall or part of the Purchased Securities, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreementas expeditiously as possible, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) of the Registrable Purchased Securities which the Company has been so requested to register by the Requesting Stockholders for Purchaser, all to the extent requisite to permit the disposition of the Purchased Securities so to be registered; provided, however, that the Company shall not be required to file any such registration statement under this Section 9(a) unless the anticipated aggregate gross offering price is at least $2,000,000.
(i) The Company shall pay all of the expenses in accordance connection with the intended method registration statement filed pursuant to this Section 3(a), except for underwriting discounts and commissions and transfer taxes, including, but not limited to the reasonable attorneys fees of disposition stated in such Demand one counsel selected by the Purchaser, which may be an Underwritten Offering;shall not exceed $1,000 per effective registration statement.
(ii) all other Registrable Securities which the Company has been A registration requested to register pursuant to this Section 6.1(b)9(a) will not be deemed to have been effected unless a registration statement with respect thereto has become effective; andprovided, that if, within 180 days after it has become effective, the offering of the Purchased Securities pursuant to such registration is interfered with by any stop order, injunction or other order or requirement of the Securities and Exchange Commission (the "SEC") or other governmental agency or court, such registration will be deemed not to have been effected.
(iii) all Class A Shares which If a requested registration pursuant to this Section 9(a) involves an underwritten offering and the managing underwriter advises the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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, 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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statementexceeds the number which can be reasonably sold in such offering, pro rata the Company will include in such registration first, securities offered by the Company, second, the Purchased Securities which have been requested to be registered pursuant to this Section 9(a), third, an amount of securities of the Company which the 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 Company held by all other security holders which, in the good faith opinion of such managing underwriter, can be sold without causing a material adverse effect on the basis of offering.
(iv) The Company shall be obligated to register Purchased Securities pursuant to this Section 9(a) only once provided that if the number of such other securities Purchased Securities requested by the Purchaser to be included or such other method determined in a Registration Statement requested by the CompanyPurchaser pursuant to Section 9 (a) is cut back, the Purchaser shall have the right, no earlier than one year following effectiveness of the first demand registration, to request a second Registration Statement to register the Purchased Securities not so registered.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nam Corp), Stock Purchase Agreement (Insurance Services Office Inc)
Demand Registration. (a) At any After the consummation of an IPO or at such time after prior to the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) consummation of an IPO as is permitted by waiver under Section 10.3 with respect to a given Shareholder, upon a Shareholder's written request specifying the IPO Underwriting Agreementintended manner of disposition (including the number of shares of Vail Equity to be sold) (a "Demand Notice"), any Stockholders that Vail will use its best efforts to prepare and file with the SEC, as expeditiously as possible, a Registration Statement on the date an available form for which Vail then qualifies (but not including by means of a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled shelf registration pursuant to make a written request of the Company (a “Demand”) for registration Rule 415 under the Securities Act Act), which legal counsel for Vail deems appropriate and which is available for the sale of a number Vail Equity to permit an underwritten public offering of Registrable Securities that, when taken together with some or all of the number shares of Registrable Securities requested to be registered under the Securities Act Vail Equity then held by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) Shareholder and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the cause such registration as promptly as practicable under the Securities Act of:
statement to become effective (i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such a "Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(bRegistration"); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: Registration will not be deemed to have occurred until it has become effective under the Securities Act (i) unless a Shareholder delivers a Demand Notice and subsequently withdraws the aggregate number of Registrable Securities requested to be registered Demand Notice, in which case such Demand Registration, (ii) the intended method of disposition in connection 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); provided, however, that if, after a Demand RegistrationRegistration has become effective, the offering of Vail Equity pursuant to the extent then known and (iii) the identity such Demand Registration is prohibited by any stop order, injunction or other order or requirement of the Requesting Stockholder SEC or other governmental agency or a court, such Demand Registration will be deemed not to have occurred (unless such prohibition on the sale of the Vail Equity is based on actions or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice omissions of such Demand to all other Stockholders. Subject to Section 6.1(f)Shareholder, the Company shall include in the which case such Demand Registration covered 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 such Demand all Registrable Securities 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 given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(bVail).
(c) For so long as Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 5.1; provided, however, that Vail will not be required to register the Secondary Class B Condition is satisfied, Holdings shall be entitled Vail Equity pursuant to an unlimited number of a Demand Registrations until Notice under this Section 5.1 if at such time as (i) the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own shares of Vail Equity which a Shareholder is requesting to be registered pursuant to this Section 5.1 constitute less than a Registrable Amount. After 6.0% (or, if less, all of the Secondary Class B Condition ceases shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to be satisfied, each Stockholder shall be entitled to an unlimited number registered or (ii) such Demand Notice is given within six (6) months after the effective date of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountany other registration of any Vail Securities under the Securities Act.
(d) Demand Registrations The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be on subject to the approval of Vail, which approval shall not be unreasonably withheld. In the event there is one or more co-managers, the first such registration form co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the SEC for Requesting Shareholder, which the Company is eligible as approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the CompanyShareholder.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc /Mo), Shareholder Agreement (Ralcorp Holdings Inc /Mo)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the effective date hereof of the registration statement for the IPO of the Company’s Common Stock, either Investor (or such earlier date (ithe “Initiating Holder”) as would permit may notify the Company that it intends to offer or cause any filings required hereunder to be filed on the 180th day after the date hereof offered for public sale all or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request portion of the Company (a “Demand”) for registration under the Securities Act of a number of its Registrable Securities that, when taken together with in the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated manner specified 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 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders)request. Within five (5) days after Upon receipt of a Demandsuch request, the Company shall give written promptly deliver notice of such Demand request to all other Stockholders. Subject to Section 6.1(f), the Company shall include in the Demand Registration covered by such Demand all holders of Registrable Securities with respect to which the Company has received a written request for inclusion therein within who shall then have ten (10) days after to notify the Company’s 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 required by this paragraph has been given. Such written request shall comply with and in such event the requirements right of a Demand as set forth any Person to participate in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings such registration shall be entitled to an unlimited number conditioned upon such Person’s participation in such underwritten public offering and the inclusion of Demand Registrations until such time as Person’s Registrable Securities in the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, underwritten public offering to the extent permissibleprovided 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, 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 (1) more than three (3) times for each Investor, or (2) if the Registrable Securities proposed to be included in such registration are expected to have an automatically 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 registration statement or an existing effective date of a registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of covering a “firm commitment” Underwritten Offering commitment underwritten public offering in which all Stockholders were given “piggyback” rights the holders of Registrable Securities shall have been entitled to join pursuant to Section 6.2 (subject to Section 6.1(f)) 4 and provided that at least 50% of the number of 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 by such Stockholders to be included in such Demand Registration were included, (Bregistration under this Section 2(a) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 unless and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of until the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company registration has a bona fide business purpose for preserving as confidential. In the event of a postponement been declared effective by the Company of Commission; provided however, that (i) 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 6.4.
(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 Investors holding a majority of the Registrable Securities included in being registered by all participating Investors (a “Participating Majority”) or (ii) the Initiating Holder, only to the extent no such Demand Registration. IfInvestor holds a majority of the Registrable Securities being registered by all participating Investors, 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 Companymay request, in writing, thatthat the Company withdraw a registration statement which has been filed under this Section 2(a) but has not yet been declared effective, and a Participating Majority (or Initiating Holder, as applicable) may thereafter request the Company to reinstate such registration statement, if permitted under the Securities Act, or to request that the Company file another registration statement, in its opinion, accordance with the inclusion procedures set forth herein and without reduction in the number of all demand registrations permitted under this Section 2(a).
(b) If a requested registration involves an underwritten public offering and the managing underwriter of such offering determines in good faith that the securities, including number of securities of the 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 offered should be limited due to be sold pursuant theretomarket conditions, then the Company shall include number of securities to be included in such registration statement only such securities as the Company is advised underwritten public offering shall be reduced to a number deemed satisfactory by such underwriter or investment bank can managing underwriter; provided, that the shares to be sold without such adverse effect as follows and excluded shall be determined in the following order of priority: (i) firstpersons not having any contractual or other right to include such securities in the registration statement, up (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 pursuant to such registration statement, (iv) Registrable Securities of the Management Stockholders, and (vi) Registrable Securities of the Investors. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (v) or (vi), such reduction shall be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, made on a pro rata among such Stockholders requesting such Demand Registration on basis (based upon the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a aggregate number of Registrable Securities included in held by such Demand Registration constituting holders).
(c) With respect to a plurality request for registration pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be chosen by (i) the Participating Majority or (ii) the Initiating Holder, only to the extent no such Investor holds a majority of all the Registrable Securities included in such Demand Registrationbeing registered by all participating Investors (which approval will not be unreasonably withheld or delayed).
Appears in 2 contracts
Sources: Registration Rights Agreement (Intapp, Inc.), Registration Rights Agreement (Intapp, Inc.)
Demand Registration. (a) At If at any time after following the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit IPO, 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 under the IPO Underwriting Agreement), any Stockholders that on the date shall receive a Demand (as hereinafter defined) is made constitute Demand Stockholders written request (a “Requesting StockholderDemand Notice”) shall be entitled to make a written request of from the Equity Committee that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or any portion of the Registrable Securities that, when taken together with specified in the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount Demand Notice (a “Demand Registration”) and thereupon the Company will), subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with specifying the intended method of disposition stated thereof, then the Company shall use its commercially reasonable efforts to effect, as expeditiously as reasonably practicable, subject to the restrictions in such Demand which may be an Underwritten Offering;
(ii) all other Section 2.2(d), the registration under the Securities Act of the Registrable Securities for which the Company Equity Committee has been requested to register pursuant to registration under this Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities2.2, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
(b) A Demand shall specify: . Notwithstanding the foregoing, (i) the aggregate number of Registrable Securities requested Equity Committee shall be entitled to be registered in such ten Demand RegistrationRegistrations pursuant to this Section 2.2, (ii) the intended method of disposition in connection with such Demand RegistrationEquity Committee shall be entitled to no more than one demand registration during any six-month period, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any make a Demand Registration with respect to the Equity Committee in the event that a Fifth Anniversary Registration or Piggyback Registration (Aas defined below) had been available to the Equity Committee within ninety (90) the 180 days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% preceding the date of the number of Registrable Securities requested by such Stockholders Demand Notice.
(b) At any time prior to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness effective date of the registration statement relating to such registration, the Equity Committee may revoke such Demand Registration would cause the disclosure of material, non-public information that request by providing a notice to the Company has a bona fide business purpose revoking such request. The Company shall be liable for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a and pay all Registration Expenses in connection with any 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 6.4.
(fc) The Company shall not include any securities other than Registrable Securities in If a Demand Registration, except with Registration involves an underwritten Public Offering and 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, Company and the Equity Committee that, in its opinionview, the inclusion number of all of the securities, including securities of the 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 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 shares of Registrable Securities requested to be included in such registration exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall 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 StockholdersEquity Committee (allocated, which, in if necessary for the opinion of offering not to exceed the underwriter can be sold without adversely affecting the marketability of the offeringMaximum Offering Size, pro rata among such Stockholders requesting such the Covered Persons whose Registrable Securities are included in the Demand Registration on the basis of the relative number of such securities held by 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 securities shares of the Company duly Registrable Securities so requested to be included in such registration statementby each);
(ii) second, pro rata 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 basis notice but not exceeding 120 days (which period may not be extended or renewed), if (i) the Company shall determine in good faith that effecting the registration would materially and adversely affect an offering of the number securities of such other securities requested to 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 included or such other method determined by in the best interests of the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Evercore Partners Inc.), Registration Rights Agreement (Evercore Partners Inc.)
Demand Registration. (a) At any After the consummation of an IPO or at such time after prior to the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) consummation of an IPO as is permitted by waiver under Section 10.3 with respect to a given Shareholder, upon a Shareholder's written request specifying the IPO Underwriting Agreementintended manner of disposition (including the number of shares of Vail Equity to be sold) (a "Demand Notice"), any Stockholders that Vail will use its best efforts to prepare and file with the SEC, as expeditiously as possible, a Registration Statement on the date an available form for which Vail then qualifies (but not including by means of a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled shelf registration pursuant to make a written request of the Company (a “Demand”) for registration Rule 415 under the Securities Act Act), which legal counsel for Vail deems appropriate and which is available for the sale of a number Vail Equity to permit an underwritten public offering of Registrable Securities that, when taken together with some or all of the number shares of Registrable Securities requested to be registered under the Securities Act Vail Equity then held by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) Shareholder and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the cause such registration as promptly as practicable under the Securities Act of:
statement to become effective (i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such a "Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(bRegistration"); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: Registration will not be deemed to have occurred until it has become effective under the Securities Act (i) unless a Shareholder delivers a Demand Notice and subsequently withdraws the aggregate number of Registrable Securities requested to be registered Demand Notice, in which case such Demand Registration, (ii) the intended method of disposition in connection 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); provided, however, that if, after a Demand RegistrationRegistration has become effective, the offering of Vail Equity pursuant to the extent then known and (iii) the identity such Demand Registration is prohibited by any stop order, injunction or other order or requirement of the Requesting Stockholder SEC or other governmental agency or a court, such Demand Registration will be deemed not to have occurred (unless such prohibition on the sale of the Vail Equity is based on actions or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice omissions of such Demand to all other Stockholders. Subject to Section 6.1(f)Shareholder, the Company shall include in the which case such Demand Registration covered 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 such Demand all Registrable Securities 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 given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(bVail).
(c) For so long as Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 5.1; provided, however, that Vail will not be required to register the Secondary Class B Condition is satisfied, Holdings shall be entitled Vail Equity pursuant to an unlimited number of a Demand Registrations until Notice under this Section 5.1 if at such time as (i) the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own shares of Vail Equity which a Shareholder is requesting to be registered pursuant to this Section 5.1 constitute less than a Registrable Amount. After 6.0% (or, if less, all of the Secondary Class B Condition ceases shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to be satisfied, each Stockholder shall be entitled to an unlimited number registered or (ii) such Demand Notice is given within six (6) months after the effective date of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountany other registration of any Vail Securities under the Securities Act.
(d) Demand Registrations The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be on subject to the approval of Vail, which approval shall not be unreasonably withheld. In the event there is one or more co-managers, the first such registration form co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the SEC for Requesting Shareholder, which the Company is eligible as approval shall not be unreasonably withheld or delayed, and all other co-managers will be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the CompanyShareholder.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 both the Shareholder not requesting the Demand Registration is not an Underwritten Offering(the "Non-Requesting Shareholder") and Vail may elect to include additional shares of Vail Securities in such offering on the same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, a nationally recognized investment bank engaged in connection with such Demand Registrationhowever, that if the managing underwriter(s) advises the CompanyRequesting Shareholder, in writing, the Non-Requesting Shareholder and Vail that, in its opinionjudgment, the inclusion number of all of the securities, including securities of the Company that are not Registrable Securities, sought shares proposed 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 included in such registration statement only such securities as offering exceeds the Company is advised by such underwriter or investment bank largest number of Vail Securities which can be sold without such having an adverse effect on such offering, including the price at which such securities can be sold (the "Marketable Number"), then the total number of shares to be included in such offering shall be limited as follows and in the following order of priorityfollows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the Non-Requesting Shareholder propose to sell up to the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the relative number of Registrable Vail Securities requested that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such Demand Registration by the Stockholdersregistration, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities all the Company shares of Vail Securities that Vail proposes to sell; , which does not exceed the difference, if any, between the Marketable Number 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 that number of such other securities requested shares which the Requesting Shareholder and the Non-Requesting Shareholder have included pursuant to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected clauses (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationabove.
Appears in 2 contracts
Sources: Shareholder Agreement (Ralcorp Holdings Inc), Shareholder Agreement (Vail Resorts Inc)
Demand Registration. (a) At Subject to the provisions of Section 2.03(c) and Section 3.04 hereof, at any time and from time to time after the date Closing Date, in the event that is one hundred and eighty any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, any Holder that holds at least five percent (1805.0%) days after of the date hereof Registrable Securities (or such earlier date (i) as would permit holder, 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 under the IPO Underwriting Agreement“Demanding Holder”), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to may make a written request demand for Registration for all or part of the Company (a “Demand”) for registration under the Securities Act of a number of such Registrable Securities thaton a Registration Statement, when taken together with which written demand shall describe the number amount and type of Registrable Securities requested securities to be registered under included in such Registration and the Securities Act by intended method(s) of distribution thereof (such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (written demand a “Demand Registration”) and thereupon ). The Company shall, promptly following the Company willCompany’s receipt of a Demand Registration, subject to the terms of this Agreementnotify, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) writing, all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number Holders of Registrable Securities requested of such demand, and each Holder of Registrable Securities who thereafter wishes to be registered include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Demand Registration, (iia “Requesting Holder”) shall so notify the intended method of disposition Company, in connection with such Demand Registrationwriting, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within within five (5) days after the receipt by the Holder of the notice from the Company. For the avoidance of doubt, to the extent a DemandRequesting Holder also separately possesses Demand Registration rights pursuant to this Section 2.02, but is not the Holder who exercises such Demand Registration rights, the exercise by such Requesting Holder of its rights pursuant to the foregoing sentence shall not count as the exercise by it of one of its Demand Registration rights. Upon receipt by the Company shall give of any such written notice of such Demand notification from a Requesting Holder(s) to all other Stockholders. Subject the Company, subject to Section 6.1(f)2.03(b) below, 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 ten (10Requesting Holder(s) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of have their Registrable Securities included in a Registration pursuant to a Demand Registrations until such time Registration and the Company shall use its commercially reasonable efforts to file a Shelf as soon thereafter as practicable, but not more than thirty (30) days following the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form Company’s receipt of the SEC Demand Registration, for which the Company is eligible as shall be selected Registration of all Registrable Securities requested by the Demanding Holders and Requesting Stockholders, including, Holders pursuant to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) such Demand Registration. The Company shall not be obligated to effect any (i) more than two (2) Registrations pursuant to a Demand Registration initiated by the Sponsor, (Aii) within ninety more than two (902) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights Registrations pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such a Demand Registration were included, initiated by the Holders (Bother than the Sponsor) within ninety or (90iii) day of any other Underwritten Offering more than four (4) Registrations pursuant to Section 6.3(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 each case, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment -month period; provided, however, that the filing or effectiveness of the registration statement relating to such Demand a 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 held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 6.4.
(f) The Company shall not include any securities other than Registrable Securities in be counted for such purposes unless a Demand Registration, except with the written consent of Stockholders participating in Registration Statement that may be available at 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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companytime has become effective.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Abacus Life, Inc.), Registration Rights Agreement (East Resources Acquisition Co)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit If 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request requested by holders of at least 20% of the Company total number of outstanding Restricted Shares (assuming conversion of all shares of Convertible Preferred Stock) to effect a “Demand”) for registration under the Securities Act of all or a number portion of Registrable Securities thatRestricted Shares with an aggregate Fair Market Value as of the date of such request equal to at least $25,000,000, when taken together or, if the Restricted Shares have an aggregate Fair Market Value of less than $25,000,000, all of the remaining Restricted Shares, in accordance with this Section, then the Company shall promptly give written notice of such proposed registration to all holders of Restricted Shares and shall offer to include in such proposed registration any Restricted Shares requested to be included in such proposed registration by such holders who respond in writing to the Company's notice within 15 days after delivery of such notice (which response shall specify the number of Registrable Securities requested Restricted Shares proposed to be registered included in such registration and the intended method of distribution, which may be pursuant to a shelf registration). If a registration pursuant to Section 7 hereof is available, the holders of Restricted Shares shall utilize such registration instead of making a request pursuant to this Section 5, unless the holders of Restricted Shares reasonably determine that it is advantageous to such holders of Restricted Shares to make a request under this Section 5. The Company shall promptly use its best efforts to effect such registration on an appropriate form under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than of the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities Restricted Shares which the Company has been so requested to register by register; provided, however, that the Requesting Stockholders for disposition Company shall not be -------- ------- obligated to effect any registration under the Securities Act except in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;following provisions:
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect file more than four registration statements in total pursuant to this Section, subject to paragraph (c) below;
(ii) the Company shall not be obligated to file any Demand Registration registration statement during any period in which (A) within ninety any other registration statement (90other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms thereto) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders which Primary Shares are to be included in such Demand Registration or were included, sold has been filed and not withdrawn or has been declared effective within the prior 90 days or (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 has determined in succession good faith that the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause require the disclosure of material, non-public material information that the Company has a bona fide business purpose for preserving as confidential. In , such filing to be delayed until the event of a postponement by date which is 90 days after such request for registration pursuant to this Section 5(a); provided that the Company of may only -------- so delay the filing or effectiveness of a registration statement for a Demand Registrationpursuant to this Section 5(a)(ii)(B) on one occasion during any twelve-month period; and
(iii) with respect to the registration pursuant to this Section, 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 6.4.
(f) The Company shall not may include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration registration any Primary Shares or Other Shares; provided, however, that hold a majority of if 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, Company in writing, that, in its opinion, -------- ------- writing that the inclusion of all of the securitiesRestricted Shares, including securities of the 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 or investment bank can be sold without such adverse effect as follows Primary Shares and in the following order of priority: (i) first, up to the number of Registrable Securities requested Other Shares proposed to be included in such Demand Registration registration would interfere with the successful marketing (including pricing) of all such securities, then the number of Restricted Shares, Primary Shares and Other Shares proposed to be included in such registration shall be included in the following order:
(A) First, the Restricted Shares, pro rata based upon the ----- --- ---- number of Restricted Shares owned by each holder at the Stockholderstime of such registration;
(B) Second, whichthe Primary Shares; and ------
(C) Third, the Other Shares. -----
(b) The holders of Restricted Shares requesting a registration pursuant to this Section may, in the opinion notice delivered pursuant to paragraph (a) above, elect that such registration cover an underwritten offering. Upon such election, such holders shall select one or more nationally recognized firms of investment banks to act as the managing underwriters and shall select any additional investment banks to be used in connection with such offering, provided that such investment banks must be reasonably satisfactory to the Company. The Company shall, together with all holders proposing to sell Restricted Shares in such offering, enter into a customary underwriting agreement with such underwriters.
(c) A requested registration under this Section may be rescinded by written notice to the Company by the Persons holding a majority of the underwriter can Restricted Shares to be sold without adversely affecting included in such registration with the marketability following consequences:
(i) If such registration statement is rescinded prior to the filing date, such rescinded registration shall not count as a registration statement initiated pursuant to this Section for purposes of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers paragraph (as defined below); a) above;
(ii) secondIf such registration statement is rescinded after the filing date but prior to its effective date, securities such rescinded registration shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above if the participating holders (x) have reimbursed the Company proposes for all out-of-pocket expenses incurred by the Company in connection with such rescinded registration or (y)
(1) reasonably believed that the registration statement contained an untrue statement of material fact or omitted to sellstate a material fact required to be stated therein or necessary to make the statements made therein not misleading, (2) notified the Company of such fact and requested that the Company correct such alleged misstatement or omission and (3) the Company has refused to correct such alleged misstatement or omission; and and
(iii) third, all other securities A registration that becomes effective shall not count as a registration statement initiated pursuant to this Section for purposes of paragraph (a) above unless the participating holders are able to sell at least 80% of the Company duly requested Restricted Shares sought to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Investor's Rights Agreement (Building One Services Corp), Investor's Rights Agreement (Apollo Investment Fund Iv Lp)
Demand Registration. (ai) At any time on or after the date that is one hundred and eighty (180) days six months after the date hereof (, if one or such earlier date (i) as would permit more Holders that own an aggregate of 51% or more of the Registrable Securities then outstanding shall make a written request to the Company to (the "Demanding Holders"), the Company shall cause any filings required hereunder there to be filed on with the 180th day after Commission a registration statement meeting the date hereof or requirements of the Securities Act (ii) as is permitted by waiver under the IPO Underwriting Agreementa "Demand Registration"), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) and each Demanding Holder shall be entitled to make have included therein (subject to Section 2.7) all or such number of such Demanding Holder's Registered Shares, as the Demanding Holder shall report in writing; provided, however, that no request may be made pursuant to this Section 2.1 if within nine (9) months prior to the date of such request a written Demand Registration Statement pursuant to this Section 2.1 shall have been declared effective by the Commission. Any request made pursuant to this Section 2.1 shall be addressed to the attention of the Company (a “Demand”) for registration under Secretary of the Securities Act of a number of Registrable Securities thatCompany, when taken together with and shall specify the number of Registrable Securities requested to be registered registered, the intended methods of disposition thereof and that the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to ninety (90) days the filing of any Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1, if the Board determines, in its good faith reasonable judgment (with the concurrence of the managing underwriter, if any), that such registration and the Transfer of Registrable Securities contemplated thereby would materially interfere with, or require premature disclosure of, any financing, acquisition or reorganization involving the Company or any of its wholly owned subsidiaries and the Company promptly gives the Demanding Holders notice of such determination; provided, however, that the Company shall not have postponed pursuant to this Section 2.1(ii) the filing of any other Demand Registration statement otherwise required to be prepared and filed pursuant to this Section 2.1 during the twelve (12) month period ended on the date of the relevant request pursuant to Section 2.1(i).
(iii) Whenever the Company shall have received a demand pursuant to Section 2.1(i) to effect the registration of any Registrable Shares, the Company shall promptly give written notice of such proposed registration to all other Holders. Any such Holder may, within twenty (20) days after receipt of such notice, request in writing that all of such Holder's Registrable Shares, or any portion thereof designated by such Holder, be included in the registration.
2.2. On or after the date of this Agreement each Substantial Holder that shall make a written request to the Company (the "Initiating Substantial Holder"), shall be entitled to have all or any number of such Initiating Substantial Holder's Registrable Securities included in a registration with the Commission in accordance with the Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “"Shelf Registration"). Any request made pursuant to this Section 2.2 shall be addressed to the attention of the Secretary of the Company, and shall specify the number of Registrable Securities to be registered, the intended methods of disposition thereof and that the request is for a Shelf Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration or a Shelf Registration”) and thereupon , the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act ofshall:
(i) File the registration statement with the Commission as promptly as practicable, and shall use the Company's best efforts to have the registration declared effective under the Securities Act as soon as reasonably practicable, in each instance giving due regard to the need to prepare current financial statements, conduct due diligence and complete other actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company's best efforts to keep the relevant registration statement Continuously Effective (x) if a Demand Registration, for up to ninety (90) days or until such earlier date as of which all the Registrable Securities which under the Demand Registration statement shall have been disposed of in the manner described in the Registration Statement, and (y) if a Shelf Registration, for three (3) years. Notwithstanding the foregoing, if for any reason the effectiveness of a registration pursuant to this Section 2 is suspended or, in the case of a Demand Registration, postponed as permitted by Section 2.1(ii), the foregoing period shall be extended by the aggregate number of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than four Demand Registrations and such number of Shelf Registrations as may be necessary to provide each and every Substantial Holder with the right to request one Shelf Registration. For purposes of the preceding sentence, registration shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, (ii) if after such registration statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason not attributable to the Selling Holders and such interference is not thereafter eliminated, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure on the part of the Selling Holders. If the Company has shall have complied with its obligations under this Agreement, a right to demand a registration pursuant to this Section 2 shall be deemed to have been so requested satisfied (i) if a Demand Registration, upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been disposed of pursuant to register the Registration Statement, and (y) the date as of which such Demand Registration shall have been Continuously Effective for a period of ninety (90) days, and (ii) if a Shelf Registration, upon the effective date of a Shelf Registration, provided no stop order or similar order, or proceedings for such an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on such appropriate registration form of the Commission as shall (i) be selected by the Requesting Stockholders for Company and be reasonably acceptable to the Majority Selling Holders, or by the Initiating Substantial Holder, as the case may be, and (ii) permit the disposition of the Registrable Securities in accordance with the intended method or methods of disposition stated specified in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register request pursuant to Section 6.1(b); and
(iii2.1(i) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to or Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.2.2
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonera Corp), Registration Rights Agreement (Voicestream Wireless Holding Corp)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit If the Company to cause any filings required hereunder to be filed on shall receive a written request from ▇▇▇ Equity (the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or any portion 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 Permitted Transferees who are StockholdersRegistrable Securities, equals or is greater than and specifying the Registrable Amount intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least fifteen (15) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the Additional Stockholders and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the all Registrable Securities for which the Company Requesting Stockholder and the other holders have has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;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 which of the same class as those requested to be registered by the Requesting Stockholder that any Stockholders with rights to request registration under Section 5.02 (all such Stockholders, together with the Requesting Stockholder, the “Registering Stockholders”) have requested the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which by request received by the Company may elect to register in connection with any offering within ten (10) Business Days after such Stockholders receive the Company’s notice of Registrable Securitiesthe Demand Registration, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered; provided that, subject to Section 5.01(d) hereof, the Company shall not be obligated to effect (x) more than ten (10) Demand Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the 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) A Demand shall specify: Promptly after the expiration of the ten (i10) Business Day period referred to in Section 5.01(a)(ii) hereof, the aggregate 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 registered 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 Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in such 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 registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than seventy-five percent (75%) of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the intended method Maximum Offering Size (as defined below) is reduced in accordance with Section 5.01(e) such that less than fifty percent (50%) of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity Registrable Securities of the Requesting Stockholder sought to be included in such registration are included.
(or e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders). Within five (5) days after receipt of a DemandStockholder that, in its view, the number of Company shall give written notice 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 Demand to all other Stockholders. Subject to Section 6.1(foffering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfiedpriority listed below, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, up to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.Maximum Offering Size:
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 all Registrable Securities requested to be included in such Demand Registration registered by the StockholdersRegistering Stockholders (allocated, which, in if necessary for the opinion of offering not to exceed the underwriter can be sold without adversely affecting the marketability of the offeringMaximum Offering Size, pro rata among such Stockholders requesting such Demand Registration entities on the basis of the relative number of such securities held by 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 securities of the Company duly Registrable Securities so requested to be included in such registration statementby each); and
(ii) second, pro rata on the basis of the number of such other securities requested all Registrable Securities proposed to be included or such other method determined registered by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Stockholders’ Agreement (Papa Murphy's Holdings, Inc.), Stockholders’ Agreement (Papa Murphy's Holdings, Inc.)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit If 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make receive a written request of by THL that the Company (a “Demand”) for effect the registration under the Securities Act of all or a number portion of the THL Entities' Registrable Securities thatSecurities, when taken together with and specifying the number intended method of Registrable Securities disposition thereof, then the Company shall promptly give written notice of such requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount registration (a “"THL Demand Registration”") at least five days prior to the anticipated filing date of the registration statement relating to such THL Demand Registration to the Non-THL Shareholders and thereupon the Company will, subject to the terms of this Agreement, will use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities of the THL Entities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;register; and
(ii) subject to the restrictions set forth in Section 5.2, all other Registrable Securities of the same class as that to which the Company THL's request relates for which an effective Piggyback Registration (as such term is defined in Section 5.2) request has been requested to register pursuant to Section 6.1(b)made; and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securitiesprovided, but that subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof5.1(d) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demandhereof, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any more than six THL Demand Registrations. In no event will the Company be required to effect more than one THL Demand Registration within any four-month period.
(Ab) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% Promptly after the expiration of the number of Registrable Securities requested by such Stockholders 2-day period referred to in Section 5.2(a) hereof, the Company will notify all the Shareholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 THL Demand Registration (but no more than twice, or for more than one hundred and twenty (120the "Holders") days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 or investment bank can be sold without such adverse effect as follows Holders and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included therein. THL 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 providing a written notice to the Company revoking such request, in which case such request, so revoked, shall not be considered a THL Demand Registration.
(c) The Company will pay all Registration Expenses in connection with any THL Demand Registration.
(d) A registration requested pursuant to this Section 5.1 shall not be deemed to have been effected (i) unless the registration statement relating thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or such shorter period in which all Registrable Securities of the Holders included in such Demand Registration registration have actually been sold thereunder); provided, that if after any registration statement requested pursuant to this Section 5.1 becomes effective (x) such registration statement is interfered with by the Stockholdersany stop order, which, in the opinion injunction or other order or requirement of the underwriter can be sold without adversely affecting the marketability SEC or other governmental agency or court and (y) less than 75% of the offeringRegistrable Securities included in such registration statement has been sold thereunder, pro rata among such Stockholders requesting such registration statement shall not be considered a THL Demand Registration on Registration, or (ii) if the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers Maximum Offering Size (as defined below); ) is reduced in accordance with Section 5.1(e) such that less than 66 2/3% of the Registrable Securities of the THL Entities sought to be included in such registration are included.
(iie) second, securities If a THL Demand Registration involves an Underwritten Public Offering and the managing underwriter shall advise the Company proposes to sell; and THL that, in its view, (iiii) third, all other securities the number of the Company duly shares of Registrable Securities requested to be included in such registration statement(including any securities which the Company proposes to be included which are not Registrable Securities) or (ii) the inclusion of some or all of the shares of Registrable Securities owned by the Holders, in any such case, exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company will include in such registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested by THL to be registered and all Registrable Securities requested to be included in such registration by any other Holder pursuant to an effective Piggyback Registration request (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the THL Entities and such Holders on the basis of the relative number of Registrable Securities held by such other Shareholder); and
(B) second, any securities requested proposed to be included registered by the Company. provided, however, that in such case, any Holder may elect to withdraw such Holder's Registrable Securities from the registration.
(f) Upon written notice to THL, the Company may postpone effecting a registration pursuant to this Section 5.1 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not exceeding 90 days (which period may not be extended or renewed), if (i) an investment banking firm of recognized national standing shall advise the Company and THL 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 has a bona fide business reason for determining that it is in possession of material non-public information the disclosure of which during the period specified in such other method determined by notice the Company believes, in its reasonable judgment, would not be in the best interests of the Company.
(g) Any investment bank(sAfter the Company has effected two Demand Registrations pursuant to this Section 5.1 of Common Stock, the Institutional Shareholders, upon request of such Institutional Shareholders owning a majority of the Shares acquired by such Institutional Shareholders on the Closing Date, may request that the Company register shares of Registrable Securities then owned by such Institutional Shareholders (an "Institutional Shareholder Demand Registration"). In no event will the Company be required to effect more than one such Institutional Shareholder Demand Registration. The provisions of this Article 5 shall apply, mutatis mutandis, to any such Institutional Shareholder Demand Registration.
(h) After the Transfer of Shares of Common Stock representing more than 20% of the Shares collectively owned by the Equity Investors of the Initial Ownership on a Fully Diluted basis owned by such Equity Investors, the Primary Executives may request that the Company register Shares which are Registrable Securities then owned by them (a "Primary Executive Demand Registration"). In no event will serve as an underwriter with respect the Company be required to effect more than three such Primary Executive Demand Registration orRegistrations. The provisions of this Article 5 shall apply, if mutatis mutandis, to any such Primary Executive Demand Registration is not an Underwritten OfferingRegistration; provided, any investment bank engaged in connection therewiththat, shall be selected notwithstanding anything to the contrary herein, (i) by Holdings, for so long as no Primary Executive Demand Registrations may be made during the Secondary Class B Condition is satisfiedsix month period following the Effective Time or within six months after the effective date any other registration statement (other than registration statement on From S-4 or S-8 or similar form), and thereafter (ii) by the Stockholder participating in Company must use its best efforts to effect such Primary Executive Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number as soon as practicable, but in no event later than 120 days following the date of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationthe demand.
Appears in 2 contracts
Sources: Investors' Agreement (Fisher Scientific International Inc), Investors' Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Demand Registration. (a) At If, on or at any time after the date that Effectiveness Date there is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company to cause no currently effective Shelf Registration Statement, then at any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement)time thereafter, any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a upon written request of the Company notice (a “Demand”) for 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 Securities 1933 Act of a number any or all of the Registrable Securities thatheld by the Demand Holder, when taken together with which notice shall specify the number amount and intended method or methods of disposition of such Registrable Securities requested Securities, including pursuant to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount a shelf registration statement utilizing Rule 415 (a “Demand 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 the Company will, subject to the terms limitations set forth in Section 2.02(c), as promptly as possible (and in any event no later than 30 days after the date of this Agreementthe Demand), file and use its reasonable best efforts to cause to be declared effective under the 1933 Act, a Registration Statement to effect the registration as promptly as practicable under the Securities 1933 Act of:
of (i) the such Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with Demand Holder under the intended method of disposition stated in such Demand which may be an Underwritten Offering;
and (ii) all other the Registrable Securities which the Company has been requested to register pursuant by written request to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering 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), but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofmethod(s) thereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, such other securities so to be so registered.
(b) A Demand shall specifyregistration requested pursuant to this Section 2.02 will not be deemed to have been effected unless: (i) it has been declared effective by the aggregate number SEC or has otherwise become effective under the 1933 Act and remains effective for not less than 180 days, or, 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 delivery of a Prospectus in connection with the sale of Registrable Securities requested to be registered in such Demand Registration, by an underwriter or dealer; or (ii) it has been filed with the intended method SEC but abandoned or withdrawn at the request of disposition in connection with such the Demand RegistrationHolder prior to effectiveness, to the extent then known and other than an abandonment or withdrawal requested because of: (iiiA) the identity stock price of the Requesting Stockholder (Common Stock falling 15% or Requesting Stockholders). Within five (5) days after receipt more since the delivery of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten registration pursuant to this Section 2.02, (10B) days after a material adverse change in the Company’s notice required by this paragraph has been given. Such written request shall comply with and the requirements Subsidiaries’ financial condition, business, assets, results of operations financial condition, taken as a Demand whole, or (D) the discovery of materially adverse, non-public information concerning the Company and the Subsidiaries, taken as set forth in this Section 6.1(b)a whole.
(c) For so long as Notwithstanding anything in this Agreement to the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.contrary:
(di) if the filing of a Registration Statement in respect of a Demand Registrations shall be on such registration form of the SEC for which would require the Company is eligible as shall be selected by to make an Adverse Disclosure, the Requesting StockholdersCompany may, including, upon giving prompt written notice of such action to the extent permissibleHolders, an automatically effective registration statement or an existing effective registration statement filed delay the filing of such Registration Statement for the shortest period of time determined in good faith by the Company with to be necessary for such purpose; provided that the SECCompany shall not be permitted to do so (A) more than two times during any twenty-four month period, and (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 be reasonably acceptable to immediately notify the Company.Holders of the expiration of any period during which it exercised its rights under this Section 2.02(c)(i);
(eii) The the Company shall not be obligated to effect any file a Registration Statement in respect of a Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, on more than two occasions or (B) within ninety a period of one (901) day month after the effective date of any other Underwritten Offering Registration Statement of the Company demanded pursuant to this Section 6.3(e). In addition2.02;
(iii) a Holder may elect to withdraw its Registrable Securities from a Demand registration pursuant to this Section 2.02 at any 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 entitled on Form S−3, except if the Company is not then eligible to postpone (upon written notice to all Stockholders) register for a reasonable period of time not to exceed ninety (90) days in succession resale 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 aggregateRegistrable Securities on Form S-3, in any period which case such registration shall be on another appropriate form, reasonably acceptable to the Holders of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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. IfSecurities, 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 and as shall permit the Company, in writing, that, in its opinion, the inclusion of all disposition of the securities, including securities 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 Company Registrable Securities issuable upon exercise of the Warrants by such Holder (subject to such exercise occurring prior to the completion of the sale of the underlying Registrable Securities prior to such registration), notwithstanding the fact that at the time of the request such Holder Warrants 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Investor Rights Agreement (Hoku Scientific Inc), Investor Rights Agreement (Tianwei New Energy Holdings Co., LTD)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit If the Company to cause any filings required hereunder to be filed on shall receive a written request from the 180th day after DLJMB Members (such requesting person, the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or any portion 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 Permitted Transferees who are StockholdersRegistrable Securities, equals or is greater than and specifying the Registrable Amount intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “Demand Registration”) at least fifteen (15) Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so 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 register be registered by the Requesting Stockholders for disposition in accordance that any Stockholders with rights to request registration under Section 1.02 (all such Stockholders, together with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(iiRequesting Stockholders, the “Registering Stockholders”) all other Registrable Securities which have requested the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which by request received by the Company may elect to register in connection with any offering within ten (10) Business Days after such Stockholders receive the Company’s notice of Registrable Securitiesthe Demand Registration, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered; provided that, subject to Section 1.01(d) hereof, the Company shall not be obligated to effect (x) more than six Demand Registrations, (y) more than one Demand Registration during any four-month period, or (z) any Demand Registration unless the aggregate gross proceeds expected to be received from the 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) A Demand shall specify: Promptly after the expiration of the ten (i10) Business Day period referred to in Section 1.01(a)(ii) hereof, the aggregate 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 registered included therein. At any time prior to the effective date of the registration statement relating to such registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration Expenses in such 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 registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such registration statement have been sold thereunder; or
(ii) if the intended method Maximum Offering Size (as defined below) is reduced in accordance with Section 1.01(e) such that less than 50% of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity Registrable Securities of the Requesting Stockholder Stockholders sought to be included in such registration are included.
(or e) If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting Stockholders). Within five (5) days after receipt of a DemandStockholders that, in its view, the number of Company shall give written notice 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 Demand to all other Stockholders. Subject to Section 6.1(foffering, including the price at which such shares can be sold (the “Maximum Offering Size”), the Company shall include in such registration, 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfiedpriority listed below, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, up to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.Maximum Offering Size:
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 all Registrable Securities requested to be included in such Demand Registration registered by the StockholdersRegistering Stockholders (allocated, which, in if necessary for the opinion of offering not to exceed the underwriter can be sold without adversely affecting the marketability of the offeringMaximum Offering Size, pro rata among such Stockholders requesting such Demand Registration on the basis of the relative number of such securities held by 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 securities of the Company duly Registrable Securities so requested to be included in such registration statementby each); and
(ii) second, pro rata on the basis of the number of such other securities requested all Registrable Securities proposed to be included or such other method determined registered by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings, Inc.)
Demand Registration. (a) At Subject to the provisions hereof, at any time on or after the date that is one hundred and eighty six (1806) days after month anniversary of the date hereof Closing Date (or such earlier date (i) as would permit defined in the Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof file a Registration Statement registering for sale all or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request part of the Company (a “Demand”) for registration their respective Registrable Securities 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (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 terms receipt of this Agreementsuch 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 the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by register; provided, however, that (i) the Requesting Stockholders Holders shall not make a request for disposition in accordance with the intended method a Demand Registration under this Section 4.1(a) for Registrable Securities having an anticipated aggregate offering price of disposition stated in such Demand which may be an Underwritten Offering;
less than $5,000,000, (ii) all other Registrable Securities which the Holders will not be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) all Class A Shares which the Company may elect will not be obligated to register effect more than one (1) Demand Registration in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition six (in accordance with the intended methods thereof6) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredmonth period.
(b) A The offering of the Registrable Securities pursuant to such Demand shall specify: Registration may be in the form of an Underwritten Public Offering. In such case, (i) the aggregate number Holders of a majority of the shares of Registrable Securities requested Stock to be registered sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten Offering and (ii) the Company shall (together with the Holders proposing to distribute their securities through such Demand Registrationunderwriting) 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 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) the intended method of disposition no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in connection with such Demand Registrationa registration other than customary representations, to the extent then known warranties and agreements and (iii) the identity liability of the Requesting Stockholder 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 Requesting Stockholders). Within five (5) days after receipt of a Demandbased 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 shall give written notice by or on behalf of such Demand to all other Stockholders. Subject to Section 6.1(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 Holder expressly for inclusion therein within ten and (10b) days 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 Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form disposition of the SEC for which 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 Company is eligible as shall be selected by basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) terms of such underwriting agreement. The Company shall not be obligated to effect or participate in any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)during any lock-up period required by the underwriter(s) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 prior underwritten offering of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4securities.
(fc) 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 in the form of an Underwritten Offering, a nationally recognized investment bank engaged the managing underwriter(s) give written advice to the Company of an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in connection with such Demand RegistrationUnderwritten Offering and (ii) advises the Company, Company will be obligated and required to include in writing, that, such Underwritten Offering that number of Registrable Securities requested by the Holders thereof to be included in its opinion, such registration and that does not exceed such Underwriters’ Maximum Number prior to the inclusion of all of the securities, including other securities of the Company that are not Registrable Securities, sought have been requested to be registered in connection with so included by any other person, and such Demand Registration would adversely affect the marketability of the Registrable Securities sought to shall be sold pursuant thereto, then allocated pro rata among the Company shall include in such registration statement only such securities as Holders thereof on the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order basis of priority: (i) first, up to the number of Registrable Securities requested to be included in therein by each such Holder.
(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 StockholdersSEC, which, in the opinion at least 75% of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly Registrable Securities requested to be included in the registration by the Holders are included in such registration statementregistration, pro rata on and the basis 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 number SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of such other securities requested the Registrable Securities pursuant to be included or such other method determined the registration, and in each case less than all of the Registrable Securities covered by the Company.
effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (gii) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration orif, if such Demand Registration is not in the case of an Underwritten Offering, any investment bank engaged in connection therewiththe Company fails to provide Full Cooperation, shall then such registration will be selected deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.1(a). If (i) by Holdings, for so long a registration requested pursuant to this Section 4.1 is deemed not to have been effected as the Secondary Class B Condition is satisfied, and thereafter a Demand Registration or (ii) the registration requested pursuant to this Section 4.1 does not remain continuously effective until the earlier of forty-five (45) days after the commencement of the distribution by the Stockholder participating in Holders of the Registrable Securities covered by such registration or the completion of such distribution, then the Company shall continue to be obligated to effect a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number pursuant to this Section 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 4.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration constituting a plurality at any time prior to the commencement of all Registrable Securities included in 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 4.1(a).
Appears in 2 contracts
Sources: Stockholders Agreement (AV Homes, Inc.), Securities Purchase Agreement (AV Homes, Inc.)
Demand Registration. (a) At any time after In the date event that is one hundred and eighty (180) following 180 days after the effective date hereof (of the Registration Statement any Holder or Holders desire to sell shares of Registrable Securities owned by such earlier date (i) as would permit Holder or Holders then upon 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of any Holder or Holders requesting that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or part of such Holder's or Holders' Registrable Securities and specifying the intended method of disposition thereof, but subject to the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities thatSecurities, when taken together and the Company shall file with the number of Registrable Securities requested Commission as promptly as practicable after sending such notice, and use its best efforts to be registered cause to become effective, a registration statement under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than registering the Registrable Amount (a “Demand Registration”) offering and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act sale of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;Holder or Holders; and
(ii) all other Registrable Securities which the Company has been requested to register pursuant by any other Holder thereof by written request given to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering 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), but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofmethod thereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
(b) A Demand shall specify: (i) ; PROVIDED, that the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of file a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause any registration request under this Section 2(a) (A) unless 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 aggregate requests by the Company Holder or Holders for such registration cover not less than an aggregate of 1,000,000 shares (adjusted for any stock splits, reverse stock splits or combination of shares) or (B) with respect to more than one such registration per calendar year; provided that a request may cover fewer than 1,000,000 shares (but not less than 500,000 shares) if the total number of shares of Registrable Securities then outstanding is less than 1,000,000. A request for registration under this Section 2(a) shall not be counted for purposes of the filing or effectiveness of foregoing limitation (i) unless a registration statement has become effective and has been kept continuously effective for a Demand Registrationthe period required under Section 4(b), (ii) if after it has become effective, use of such registration statement is suspended by any stop order, injunction or other order or requirement of the holders of a majority of Commission or other governmental agency or court, (iii) if no Registrable Securities held by are sold within the Requesting Stockholders shall have period during which the right to withdraw such Demand in accordance with registration statement has been kept continuously effective as required under Section 6.4.
(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 Registration4(b). IfA Holder may, in connection with a Demand Registrationrequest for registration under this Section 2(a), 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 specify 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 are to be sold pursuant theretoon a delayed or continuous basis, then in which case 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 file a Shelf Registration Statement with respect thereto; provided, that each of the following order of priorityconditions has been satisfied: (i) firstthe Company is eligible to file a registration statement on Form S-3, up to (ii) a period of six years has elapsed since the effective date of the Registration Statement and (iii) the total number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion outstanding constitutes 30% or less of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the total number of such securities held by 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 securities shares of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanyCommon Stock outstanding.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Vysis Inc), Registration Rights Agreement (Vysis Inc)
Demand Registration. (a) At If at any time after following the date that is one hundred and eighty (180) days after first anniversary of the date hereof (or such earlier date (i) as would permit Effective Date, the Company to cause shall receive a request from any filings required hereunder to be filed on Stockholder, or group of Stockholders, that holds in the 180th day after aggregate 20% (or, if the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement)First Public Offering has occurred, any Stockholders Stockholder, or group of Affiliated Stockholders, that on holds in the date a Demand aggregate 10%) or more of the then outstanding Common Stock (as hereinafter defined) is made constitute Demand Stockholders (a “the "Requesting Stockholder”") shall be entitled to make a written request of that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or any portion 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 Permitted Transferees who are Stockholders's Registrable Securities, equals or is greater than and specifying the Registrable Amount intended method of disposition thereof, then the Company shall promptly give notice of such requested registration (each such request shall be referred to herein as a “"Demand Registration”") at least 20 Business Days prior to the anticipated filing date of the registration statement relating to such Demand Registration to the other Stockholders and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the all Registrable Securities for which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;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 which that any other Stockholders (all such other Stockholders, together with the Requesting Stockholders, the "Registering Stockholders") have requested the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which by request received by the Company may elect 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 register in connection with any offering such Stockholder required to effect the registration of such Stockholder's Registrable Securities), but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registrationprovided that, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject subject to Section 6.1(f2.01(d)(g), 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any more than 4 Demand Registration Registrations (A) within ninety (90) days at least one of a “firm commitment” Underwritten which shall be available for use after the First Public Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(fhas occurred)) , and provided further that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall not be entitled obligated to postpone (upon written notice to all Stockholders) for effect a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: unless (i) first, up to the number aggregate market price or fair value on the date of such request of the Registrable Securities requested to be included in such Demand Registration by equals or exceeds $25,000,000 or (ii) the Stockholders, which, in the opinion number of the underwriter can Common Shares requested to be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting registered pursuant to such Demand Registration equals or exceeds 10% of then outstanding Common Shares on the basis 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 statement relating to such securities held registration, the Requesting Stockholders may revoke such request, without liability to any of the other Registering Stockholders, by providing a notice to the Company revoking such Stockholders and request. A request, so revoked, shall be considered to be a Demand Registration unless (i) such Stockholders that are Piggyback Sellers revocation arose out of the fault of the Company (as defined belowin which case the Company shall be obligated to pay all Registration Expenses in connection with such revoked request); , or (ii) second, securities the Requesting Stockholders reimburse the Company proposes 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, regardless of whether such Registration is effected, except as set forth in Section 2.01(b).
(d) Any registration statement filed pursuant to sella 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 group of Affiliated Stockholders, if any, that holds in the aggregate 20% or more of the then outstanding Registrable Securities (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 (iiiB) thirdhas 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 other securities Registrable Securities of the Registering Stockholders included in such registration have actually been sold thereunder), provided that such registration statement shall not be considered a Demand Registration if, after such registration statement becomes effective, (1) such registration statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and (2) less than 75% of the Registrable Securities included in such 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 662/3% 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 and the managing underwriter advises the Company duly and the Requesting Stockholders that, in its view, the number of shares of Registrable Securities requested to be included in such registration statement(including any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the "Maximum Offering Size"), the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by any Registering Stockholders (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such entities on the basis of the relative number of such other securities Registrable Securities so requested to be included or in such other method determined registration by each), and
(ii) second, subject to Section 2.01(e), any securities proposed to be registered for the account of the Company.
(gi) Any investment bank(s) that will serve as an underwriter with respect Upon notice to such Demand Registration oreach Registering Stockholder, the Company may postpone effecting a registration pursuant to this Section 2.01 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 such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as an investment banking firm of recognized national standing shall advise the Secondary Class B Condition is satisfied, Company and thereafter 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) by the Stockholder participating Company is in possession of material non-public information the disclosure of which during the period specified in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number notice the Company reasonably believes would not be in the best interests of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationthe Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (McLeodUSA Holdings Inc), Registration Rights Agreement (McLeodusa Inc)
Demand Registration. If the Investor is unable to sell shares of ------------------- Common Stork within eighteen (a18) At any time months after the date that is one hundred and eighty (180end of the Restriction Period pursuant to Rule 144(k) days after the date hereof (or such earlier date (ia successor rule) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of or on a number of Registrable Securities thatPiggyback Registration Statement, when taken together with the number of Registrable Securities requested Investor shall have the right to be registered require the Company to file one registration statement under the Securities Act by on a Form S-3, provided such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or registration form is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject available to the terms Company, to register shares of Common Stock acquired under this Agreement, use its reasonable best efforts Agreement for sale in a public offering that is not to effect the registration as promptly as practicable be made on a continuous or delayed basis pursuant to Rule 415 (or a successor rule) under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested and that is expected to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all yield net proceeds to the extent necessary to permit the disposition Investor of at least Five Million Dollars ($5,000,000), as specified in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), from 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable Investor to the Company.
(ei) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of Following the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day Company's receipt of any other Underwritten Offering pursuant to notice under this Section 6.3(e8(b). In addition, the Company shall be entitled use its best efforts to postpone register under the Securities Act, as soon as reasonably practicable, the number of shares of Common Stock specified by the Investor in such notice (upon written notice to all Stockholdersor such lesser number as the managing underwriter(s) for a reasonable period in such offering believes will not unduly jeopardize the success of time not to exceed ninety (90) days in succession the offering); provided, however, that the Company may delay the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating for as long as
(A) the request for registration pursuant to such Demand Registration this Section 8(b) would cause require the Company to include in the registration statement on the filing date or on the expected effective date audited financial statements which are not yet required to be filed with the Commission under the Exchange Act; or
(B) the Company's board of directors reasonably determines that the disclosure required in the registration statement or the pricing of material, non-public information that the offering would adversely affect the Company has or its ability to engage in a bona fide business purpose for preserving as confidential. planned registered public offering or in any other planned activity.
(ii) In the event of that the Investor makes a postponement by demand for registration as described in this Section 8(b), 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 register other shares of Common Stock in the registration statement; provided, however, that such Demand shares shall not be included to the extent provided -------- ------- in accordance Section 8(f) below, if applicable, and in all other situations, such shares (other than the Original Registration Stock) shall not be included to the extent that the Investor determines in good faith that the inclusion of such shares will interfere with the successful marketing of the Investor's shares to be included therein; provided, further, that, if the number of shares to be so -------- ------- included exceeds the number of the Investor's shares included therein, such registration shall be deemed to be a registration pursuant to Section 6.48(a) hereof.
(fiii) The Company shall not include managing underwriter(s) for 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 underwritten public offering pursuant 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowthis Section 8(b); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as mutually acceptable to the Secondary Class B Condition is satisfied, Company and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationInvestor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Genvec Inc), Stock Purchase Agreement (Genvec Inc)
Demand Registration. All expenses (aother than underwriting discounts and commissions) At any time after the date that is one hundred and eighty incurred in connection with a registration requested under Section 2 (180) days after the date hereof (or such earlier date (i) which right may be assigned as 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 under the IPO Underwriting Agreementprovided in Section 1), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals filings or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register qualifications pursuant to Section 6.1(b); and
2, including (iiiwithout limitation) all Class A Shares which registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company may elect to register in connection with any offering of Registrable SecuritiesCorporation, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) reasonable fees and disbursements of one counsel for the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own 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 selling Holders selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days Holders of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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. Ifto be registered, in connection with a Demand Registrationshall be borne by the Corporation; provided, however, that the Corporation shall not be required to pay for any managing underwriter (or, expenses of any registration proceeding begun pursuant to Section 2 if such Demand Registration the registration request is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises subsequently withdrawn at the Company, in writing, that, in its opinion, the inclusion of all request of the securities, including securities Holders of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability a majority of the Registrable Securities sought to be sold pursuant thereto, then the Company registered (in which case all participating Holders shall include in bear 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 expenses pro rata based upon the number of Registrable Securities requested that were to be included in the withdrawn registration); provided further, however, that if at the time of such Demand Registration withdrawal, the selling Holders have (i) learned of a material adverse change in the condition, business, or prospects of the Corporation from that known to the selling Holders at the time of their request or have been advised by the Stockholdersunderwriter that the registration should be withdrawn (either a “Withdrawal Event”) and (ii) have withdrawn the request with reasonable promptness following the occurrence of such Withdrawal Event, whichthen the selling Holders shall not be required to pay any of such expenses and shall retain their rights pursuant to Section 2. If the Holders are required to pay any expenses, in such expenses shall be borne by the opinion holders of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders securities (including Registrable Securities) requesting such Demand Registration on the basis of registration in proportion to the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) secondfor which registration was requested. If the Corporation is required to pay the expenses due to a Withdrawal Event, securities then the Company proposes Holders shall not forfeit their rights 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 number of such other securities requested to be included or such other method determined by the Companya demand registration.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fluence Energy, Inc.), Registration Rights Agreement (Fluence Energy, Inc.)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit Request for Registration. At any time, 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request Holders of the Company (a “Demand”) for registration under the Securities Act Purchased Shares representing not less than 25% 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested (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 be permitted to request a registration pursuant to this Section 2(a) unless the right to make such a request was specifically transferred by the Investors (or any transferee) to such transferee. Any such request shall specify the number of Registrable Securities proposed to be registered in such Demand Registration, (ii) sold and will also specify the intended method of disposition in connection with thereof, such Demand Registration, method of disposition to be subject to the extent then known and (iii) the identity approval of the Requesting Stockholder Company if it is other than a firm commitment underwritten public offering (or Requesting Stockholderswhich approval shall not be unreasonably withheld). Within five (5) days after receipt Subject to the other provisions of a Demandthis Section 2(a), the Company shall give written notice of such Demand registration request within 10 days after the receipt thereof to all other StockholdersHolders. Subject to Section 6.1(f)Within 15 days after receipt of such notice by any Holder, such Holder may request in writing that its Registrable Securities be included in such registration (whether or not such Registrable Securities are of the same series or class as the Registrable Securities that were the subject of the original demand) and the Company shall include in the Demand Registration covered by such Demand all the Registrable Securities with respect of any such Holder requested 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 givenbe so included. Such written Each such request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of specify the number of Registrable Securities requested by such Stockholders proposed to be sold and the intended method of disposition thereof, such method of disposition to be subject to the approval of the Company if it is other than a firm commitment underwritten public offering (which approval shall not be unreasonably withheld). Upon a demand, the Company will:
(x) prepare and file within 30 days after a request has been made and use its reasonable best efforts to 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 Registration Statement in respect of all the Registrable Securities which Holders request for inclusion therein; and
(y) keep such Registration Statement continuously effective for the shorter of (A) 90 days and (B) such period of time as all of the Registrable Securities included in such Demand Registration were included, 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) within ninety or other period (90not to exceed 180 days) day of any other Underwritten Offering during which the Company is prohibited or restricted from issuing or selling securities pursuant to Section 6.3(eany underwriting or purchase agreement relating to an underwritten Rule 144A offering or registered public offering of securities (a "Lock Up Period"). In addition, the Company shall notify the Demand Party of the basis therefore and shall not be entitled 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 (upon written notice 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 all Stockholdersamend 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 reasonable period of time not to exceed ninety an aggregate of 90 days (90a "Pending Event Suspension Period") days in succession the filing event that (1) an event or circumstance occurs and is continuing that has not been publicly disclosed and, if not disclosed in the effectiveness 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 registration statement for any Demand Registration (but no more than twicematerial fact or omitting to state a material fact required to be stated therein, or for more than one hundred and twenty (120) days necessary in order to make the statements therein, in the aggregatelight of the circumstances under which they were made, not misleading, and (2) in any period the good faith judgment of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of Directors of the registration statement relating to such Demand Registration would cause Company (the disclosure of material"Board"), non-public information that after consultation with its outside securities counsel, the Company has a bona fide business purpose for preserving as confidentialnot 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 the event of a postponement by the occurrence of any Black Out Period or Lock Up Period, the Company of will promptly notify the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority Holders of Registrable Securities held by thereof in writing. If the Requesting Stockholders Company shall postpone the filing of a Registration Statement, the Holders of Registrable Securities requesting registration thereof shall have the right to withdraw the request for registration by giving written notice to the Company within 30 days after receipt of notice of postponement from the Company and, in the event of such Demand in accordance with withdrawal, such request shall not be counted for purposes of the requests permitted to be made under this Section 6.4.
(f) 2(a). The Company shall not include be permitted to assert more than one Black Out Period in 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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companyconsecutive 180-day period.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cabletron Systems Inc), Registration Rights Agreement (Aprisma Management Technologies Inc)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after expiration of the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreementtransfer restrictions contained in Section 2.1(a), so long as the Shareholders, collectively, Own at least 5.0% of the Voting Power of the Company, any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders Shareholder (a “Requesting StockholderShareholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number an amount of Registrable Securities that, when taken together with the number amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting StockholderShareholder’s Permitted Transferees who are StockholdersAffiliates, equals or is greater than the Registrable Amount (based on the number of Registrable Securities outstanding on the date such Demand is made) (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its commercially reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders Shareholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten OfferingDemand;
(ii) all other Registrable Securities which that the Company has been requested to register pursuant to Section 6.1(b5.1(b); and
(iii) all Class A Common Shares which that the Company may elect to register in connection with any offering of Registrable SecuritiesSecurities pursuant to this Section 5.1, but subject to Section 6.1(f5.1(g); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Common Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder Shareholder (or Requesting StockholdersShareholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f5.1(g), 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b)initial Demand.
(c) For so long as the Secondary Class B Condition is satisfiedThe Shareholders, Holdings collectively, shall be entitled to an unlimited number aggregate of six (6) Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable AmountRegistrations.
(d) A Demand Registration shall not be deemed to have been effected and shall not count as a Demand (i) unless a registration statement with respect thereto has become effective and has remained effective for a period of at least sixty (60) days (or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder), (ii) if, after it has become effective, such Demand Registration becomes subject to any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason, (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such Demand Registration are not satisfied as a consequence of any act or omission by the 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 SEC for which the Company is eligible Commission as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(ef) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all StockholdersShareholders) for a reasonable period up to an aggregate of time not to exceed ninety (90) days in succession during any period of twelve (12) consecutive months the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 Shareholder(s) shall have the right to withdraw such Demand in accordance with Section 6.45.3.
(fg) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders Shareholders 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 independent investment bank engaged in connection with such Demand Registrationselected by the Company) 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 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 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 in such Demand Registration by the StockholdersShareholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders Shareholders requesting such Demand Registration on the basis of the number of such securities held requested to be included by such Stockholders Shareholders and such Stockholders Shareholders that are Piggyback Sellers (as defined below)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 number amount of such other securities requested to be included or such other method determined by the Company.
(gh) Any time that a Demand Registration involves an Underwritten Offering, the Company shall select the investment bank(s) banker or investment bankers and managers that will serve as an underwriter lead and co-managing underwriters with respect to the offering of such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationSecurities.
Appears in 2 contracts
Sources: Shareholder Agreement (Marubeni Corp /Fi), Shareholder Agreement (Marubeni Corp /Fi)
Demand Registration. (a) At any time after following the date that is one hundred of this Agreement and eighty upon written notice from a Holder or Holders of at least twenty percent (18020%) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Registrable Securities (without giving effect to any limitation on exercise or conversion) in the manner set forth in Section 11(h) hereof requesting that Company (a “Demand”) for effect the registration under the Securities Act of a number any or all of the Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act held by such Requesting Stockholder’s Permitted Transferees who are StockholdersHolder as described in Section 2(b) (which notice shall specify the intended method or methods of disposition of such Registrable Securities), equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect effect, in the manner set forth in Section 5, the registration as promptly as practicable under the Securities Act of:
(i) the of such Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method or methods of disposition stated in such Demand which may 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 an Underwritten Offering;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) all other Registrable Securities which the if, while a registration request is pending pursuant to this Section 2(a), Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register determined in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration good faith that (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 could jeopardize or delay any Demand Registration (but no more contemplated material transaction other than twice, a financing plan involving Company or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause require the disclosure of material, non-public material information that the Company has had a bona fide business purpose for preserving as confidential; or (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 term of this Agreement.
(iii) Company shall not be obligated to file more than two (2) registration statements under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any event if such a registration request is for a number of Registrable Securities which have an aggregate market value less than $1 million. If such a request shall be for an underwritten offering, such a request must be for a number of Registrable Securities which have an aggregate market value of at least $5 million.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the requesting 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 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 which were the subject matter of the request; (C) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court 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 of a postponement by the that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, 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 designate the underwriter or underwriters, including the lead managing underwriter of such Demand in accordance with Section 6.4underwritten offering, subject to the reasonable approval of the Holders.
(fd) The Company shall not include any securities 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 a Demand Registration, except any registration pursuant to Section 2(a). In connection with those registrations in which multiple Holders or holders of other registrable securities 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 right 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 participate 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 (“Piggy-back Rights Holders”) participate, in the following order of priority: (i) firstevent the facilitating broker/dealer or, up to in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the number of Registrable Securities requested shares to be sold, the number of shares to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can sale or underwriting and registration shall be sold without adversely affecting the marketability of the offering, allocated pro rata among such Stockholders requesting such Demand Registration the Holders and the holders seeking registration pursuant to piggy-back registration rights otherwise granted by Company on the basis of the number 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 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 held 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 then contemplated by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanyHolder.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (RS Properties I LLC), Registration Rights Agreement (Sands Brothers Venture Capital Ii LLLC)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit Upon written notice of the Holders of a majority of the then outstanding Registrable Securities (on a common stock equivalent basis) requesting that 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 under the IPO Underwriting Agreement), any Stockholders that on the date effect a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities thatand specifying the intended method or methods of distribution thereof (which may include a continuous or delayed offering), when taken together with the number of Company shall prepare and file a Registration Statement on Form S-3 under the Securities Act, or other appropriate Form in the event Form S-3 is not available, covering the Registrable Securities then outstanding and shall use commercially reasonable efforts to cause such Registration Statement to become effective as expeditiously as possible and to remain effective until the earlier to occur of (i) the date on which all Registrable Securities covered by such Registration Statement have been sold and the distribution contemplated thereby has been completed or (ii) the date by which all the Registrable Securities covered thereby may be sold under Rule 144(k) (the "Effectiveness Period"); provided, however, that the Purchaser shall not be entitled to make more than two (2) demands to register the Registrable Securities pursuant to this Section 6(a)(i). A demand registration requested pursuant to this Section 6(a)(i) will not be registered deemed to have been effected unless the Registration Statement relating thereto has become effective under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than and remains effective for the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;period described above.
(ii) all other Registrable Securities which A Holder (including the Purchaser) or Holders requesting a registration pursuant to this Section 6(a) may, at any time prior to the effective date of the Registration Statement relating to such registration, revoke such request by providing a written notice to the Company has been requested to register pursuant to Section 6.1(b); andrevoking such request.
(iii) all Class A Shares The Company may include any other securities in any demand registration effected pursuant to this Section 6(a); provided, however, that if the managing underwriter(s) or the representative(s) of the several underwriters (the "Managing Underwriter") of a proposed underwritten public offering of Common Stock advises the Holder or Holders intending to participate in such offering in writing that the total amount or kind of securities which such Holders and the Company may elect intend to register include in connection with any such offering is sufficiently large to materially adversely affect the success of Registrable Securitiessuch offering, but subject then the amount or kind of securities to Section 6.1(f); all be offered for the accounts of the Company shall be reduced pro rata to the extent necessary to permit reduce the disposition (in accordance with the intended methods thereof) total amount or kind of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders securities to be included in such Demand Registration were includedproposed public offering to the amount or kind recommended by such Managing Underwriter and, (B) within ninety (90) day if such reduction results in no securities being offered for the accounts of any other Underwritten Offering pursuant the Company in such proposed public offering, then the amount or kind of securities to Section 6.3(e). In addition, be offered for the account of the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up reduced to the number extent necessary to reduce the total amount or kind of Registrable Securities requested securities to be included in such Demand Registration by proposed public offering to the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held amount or kind recommended by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included managing underwriter or such other method determined by the Companyunderwriters.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 2 contracts
Sources: Stock Purchase and Registration Rights Agreement (Northshore Asset Management LLC), Stock Purchase and Registration Rights Agreement (Startech Environmental Corp)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date On not more than two occasions prior to ------------------- December 31, 2001, if Du Pont (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders requests in writing (a “Requesting Stockholder”"Registration Request") shall be entitled to make a written request of that CEI register the Company (a “Demand”) for registration sale or other distribution under the Securities Act of a number 1933, as amended (the "Securities Act") of any of the Registrable Securities that, when taken together with (which request shall specify the number of Registrable Securities requested intended to be offered and sold), (ii) expresses Du Pont's present intent to offer such Registrable Securities for distribution, (iii) describes the nature or method of the proposed offer and sale thereof, and (iv) undertakes to provide all such information and materials relating to Du Pont and to take all such action as may be required of Du Pont in order to permit CEI to comply with all applicable requirements of the Securities and Exchange Commission (the "Commission") and to obtain acceleration of the effective date of the registration statement therefor, CEI shall use all reasonable efforts to cause the offering of the Registrable Securities so specified in such request to be registered as soon as reasonably practicable so as to permit the sale or other distribution by Du Pont of the Registrable Securities specified in the Registration Request, and shall in connection therewith prepare and file on an appropriate form, as CEI shall reasonably determine, a registration statement under the Securities Act by to effect such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject registration. Notwithstanding any provision to the terms of contrary contained herein, CEI shall not be required to file any registration statement pursuant to this Agreement, use its reasonable best efforts to effect section 1.1
(a) in the registration as promptly as practicable under the Securities Act offollowing circumstances:
(i) if, in the Registrable Securities which reasonable judgment of Rheinbraun or CEI, a registration at the Company has time and on the terms requested would materially adversely affect any financing by CEI that had been so requested contemplated by Rheinbraun or CEI prior to register the notice by Du Pont requesting registration, CEI shall not be required to commence using its best efforts to effect a registration pursuant to this section until the earliest of (1) 90 days after the completion of such financing, (2) the termination of any "black out" period required by the Requesting Stockholders for disposition underwriters, initial purchasers or placement agents, if any, in accordance connection with the intended method such financing or (3) promptly after abandonment of disposition stated in such Demand which may be an Underwritten Offeringfinancing;
(ii) all other Registrable Securities which the Company has been requested to register if, while a Registration Request is pending pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securitiesthis section, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (Rheinbraun or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 CEI determines in good faith and in its reasonable judgment faith, based on the advice of counsel, that the filing or effectiveness of proceeding with the registration statement relating to such Demand Registration would cause require the disclosure of material, non-public material information that the Company Rheinbraun or CEI has a bona fide business purpose for preserving as confidential. In , or CEI is unable to comply with Commission requirements, CEI shall not be required to effect such pending registration statement until the event earlier of (1) the date upon which such material information is disclosed to the public or ceases to be material or (2) 120 days after the date CEI makes such determination; and
(iii) if Rheinbraun and CEI shall not have received undertakings reasonably satisfactory to them from any underwriter or underwriters to indemnify and hold them harmless, each of their directors and officers, and every other controlling person of them, from and against any and all loss, damage, liability, cost or expense to which they, any director or officer of them, or every other controlling person of them may become subject under the Securities Act or otherwise, insofar as such losses, damages, liabilities, costs or expenses (A) are caused by any untrue or alleged untrue statement of any material fact contained in the registration statement or prospectus included therein, as amended or supplemented, or (B) arise out of or are based upon the omission or the alleged omission to state therein a postponement by material fact required to be stated therein or necessary to make the Company statements therein, in light of the filing or effectiveness of a registration statement for a Demand Registrationcircumstances in which they were made, 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 6.4.
(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. Ifmisleading, in connection each case to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in conformity 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 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 written information furnished 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companyunderwriters.
(giv) Any investment bank(sThe right of Du Pont to exercise registration rights pursuant to section 1.1(a) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected subject to the condition that the first Registration Request of Du Pont shall be for not less than 20,000 Class A Shares (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationor equivalent).
Appears in 1 contract
Demand Registration. (a) At Subject to the provisions hereof, at any time on or after the date that is one hundred and eighty (180) 180 days after the date hereof (or such earlier date (i) as would permit Closing Date, the Holders of a majority of Registrable Securities shall have the right to require the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof file a Registration Statement registering for sale all or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request part of the Company (a “Demand”) for registration their respective Registrable Securities 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (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 terms receipt of this Agreementsuch 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 the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by register; provided, however, that (i) the Requesting Stockholders Holders shall not make a request for disposition in accordance with the intended method a Demand Registration under this Section 3.2(a) for Registrable Securities having an anticipated aggregate offering price of disposition stated in such Demand which may be an Underwritten Offering;
less than $5,000,000, (ii) all other Registrable Securities which the Holders will not be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) all Class A Shares which the Company may elect will not be obligated to register effect more than one (1) Demand Registration in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition six (in accordance with the intended methods thereof6) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredmonth period.
(b) A The offering of the Registrable Securities pursuant to such Demand shall specify: Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the aggregate number Company may designate the managing underwriter(s) of Registrable Securities requested 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 registered 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 Demand RegistrationUnderwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 3.9 of this Agreement; provided, that (i) the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the underwriter(s) shall also be made to and for the benefit of the Holders proposing to distribute their securities through the Underwritten Offering, (ii) the intended method of disposition no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in connection with such Demand Registrationa registration other than customary representations, to the extent then known warranties and agreements and (iii) the identity liability of the Requesting Stockholder 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 Requesting Stockholders). Within five (5) days after receipt of a Demandbased 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 shall give written notice by or on behalf of such Demand to all other Stockholders. Subject to Section 6.1(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 Holder expressly for inclusion therein within ten and (10b) days shall not in any Table of Contents event, absent fraud or intentional misrepresentation, exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions) from the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form disposition of the SEC for which 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 Company is eligible as shall be selected by basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any Demand Registration twelve (A12) within ninety month period, and (90b) days of a “firm commitment” in any Underwritten Offering during any lock-up period required by the underwriter(s) in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% 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 such Stockholders the Holders thereof to be included in such Demand Registration were includedregistration that does not exceed such Underwriters’ maximum number, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 registered in connection with such Demand Registration would adversely affect allocated pro rata among the marketability Holders thereof on the basis of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to 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 such 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 StockholdersSEC, which, in the opinion at least 75% of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly Registrable Securities requested to be included in the registration by the Holders are included in such registration statementregistration, pro rata on and the basis 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 number SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of such other securities requested the Registrable Securities pursuant to be included or such other method determined the registration, and in each case less than all of the Registrable Securities covered by the Company.
effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (gii) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration orif, if such Demand Registration is not in the case of an Underwritten Offering, any investment bank engaged in connection therewiththe Company fails to provide Full Cooperation, shall then such registration will be selected deemed not to have been effected for purposes of clause (ii) of the proviso to Section 3.2(a). If (i) by Holdings, for so long a registration requested pursuant to this Section 3.2 is deemed not to have been effected as the Secondary Class B Condition is satisfied, and thereafter a Demand Registration or (ii) the registration requested pursuant to this Section 3.2 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Stockholder participating in Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number pursuant to this Section 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 3.2(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration constituting a plurality at any time prior to the commencement of all Registrable Securities included in 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 3.2(a).
Appears in 1 contract
Demand Registration. (a) At The Holder shall have the right at any time after by written notice (the date that is one hundred and eighty (180"Demand Notice") days after given to the date hereof (or such earlier date (i) as would permit Company, to request 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 register under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method provisions of disposition stated in such Demand which may be an Underwritten Offering;
(ii) the Securities Act all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with or any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) portion of the Registrable Securities and the additional Class A SharesShares designated by such Holder; provided, if anyhowever, to be so registered.
(b) A Demand shall specify: (i) that the aggregate number of Registrable Securities Shares requested to be registered in pursuant to any Demand Notice and pursuant to any related Demand Notices received pursuant to the following sentence shall be at least 100,000 (subject to adjustment) and provided, further, however, that such registration shall, at the option of the Company, be on Form S-3 (or its successor form) if such form is then available for use by the Company. Upon receipt of any 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 Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandNotice, the Company shall give written notice promptly notify any other Holders of the receipt of such Demand Notice and allow them the opportunity to all other Stockholders. Subject to Section 6.1(f), the Company shall include Registrable Shares held by them in the proposed registration by submitting their own Demand Registration covered by such Demand all Registrable Securities Notice. In connection 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 given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” in which more than one Holder participates, in the event that such Demand Registration involves an Underwritten Offering and the managing underwriter or underwriters participating in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of such offering advise in writing the number Holders of Registrable Securities requested by such Stockholders Shares to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 offering 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 held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 6.4.
(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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the total number of Registrable Securities requested Shares to be included in such Demand Registration by offering exceeds the Stockholders, which, in the opinion of the underwriter amount that can be sold in (or during the time of) such offering without adversely affecting delaying or jeopardizing the marketability success of such offering (including the price per share of the offeringRegistrable Shares to be sold), pro rata among such Stockholders requesting such Demand Registration on then the basis amount of Registrable Shares to be offered for the number account of such securities held by 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 securities of the Company duly requested to Holders shall be included in such registration statement, reduced pro rata on the basis of the number of Registrable Shares to be registered by each such Holder. The Holders as a group shall be entitled to three Demand Registrations pursuant to this Section 2 unless any Demand Registration does not become effective, is not maintained for a period (whether or not continuous) of at least the applicable period specified in Section 2(c), or where the amount of Registrable Shares to be offered for the account of such Holders is reduced pro rata as described in the preceding sentence by more than ten percent (10%), in which case the Holders will be entitled to an additional Demand Registration pursuant hereto.
(b) The Company, within thirty (30) days of the date on which the Company receives a Demand Notice given by Holders in accordance with Section 2(a) hereof, shall file with the SEC, and the Company thereafter shall use its best efforts to cause to be declared effective, a Registration Statement on the appropriate form (subject to the last proviso of the first sentence of Section 2(a)) for the registration and sale, in accordance with the intended method or methods of distribution, of the total number of Registrable Shares specified by the Holders in such Demand Notice, which may at the option of the Company include a "shelf" registration (a "Shelf Registration") pursuant to Rule 415 under the Securities Act (a "Demand Registration").
(c) The Company shall use commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 2 continuously effective and usable for the resale of the Registrable Shares covered thereby (i) in the case of a Registration that is not a Shelf Registration, for a period of one hundred twenty (120) days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of a Shelf Registration, continuously from the date on which the SEC declares such Registration Statement effective, in either case (x) until all the Registrable Shares covered by such Registration Statement have been sold pursuant to such Registration Statement), and (y) as such period may be extended pursuant to this Section 2.
(d) The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Holdback Periods (as defined in Section 4) and all Interruption Periods (as defined in Section 6(k)) occurring during such Registration and such period and any extension thereof is hereinafter referred to as the "Effectiveness Period."
(e) Except to the extent required by agreements with other security holders of the Company entered into prior to the date of the Stock Purchase Agreement, the Company shall not include any securities requested that are not Registrable Shares in any Registration Statement filed pursuant to this Section 2 without the prior written consent of the Holders of a majority in number of the Registrable Shares covered by such Registration Statement, which consent shall not be unreasonably withheld.
(f) Holders of a majority in number of the Registrable Shares to be included or such other method determined by in a Registration Statement pursuant to this Section 2 may, at any time prior to the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect effective date of the Registration Statement relating to such Registration, revoke such request by providing a written notice to the Company revoking such request. Notwithstanding such revocation, such request shall be deemed to be a Demand Registration orpursuant to Section 2(a) unless the Holders of Registrable Shares who revoke such request shall reimburse the Company for all its out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement; provided, however, that, if such Demand Registration is not an Underwritten Offering, revocation was based on the Company's failure to comply in any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together material respect with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in obligations hereunder, such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationreimbursement shall not be required.
Appears in 1 contract
Sources: Stock Purchase Agreement (Churchill Environmental & Industrial Equity Partners Lp)
Demand Registration. (a) At Subject to Section 2.2, at any time beginning six months after the effective date of the Company's initial public offering of common shares, any one Specified Shareholder (a "Demanding Shareholder"), but only, in the case of Securitas Capital Fund, with respect to one Registered Public Offering as provided in Section 2.1(b), shall have the right to require the Company to use its reasonable best efforts to fulfill such requirements as may be necessary to permit a Registered Public Offering (on a firm-commitment, underwritten basis) of Registrable Securities for the account(s) of Specified Shareholders, by delivering written notice of such demand to the Company specifying the number of Registrable Securities that are held of record, and are proposed to be sold in such 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 Demand 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), (b) or (c), and if such request involves individual Demand Requests that have been submitted by more than one hundred Demanding Shareholder and eighty 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 or not to 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 (180as defined below) days after shall (except as provided in the date hereof 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 such earlier date (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 would permit the Company to cause any filings required hereunder to be filed on the 180th day after of the date hereof of such Demand Request, or (ii) shares of Common Stock having a value of $100 million, based on the Current Market Price as is permitted by waiver under of the IPO Underwriting Agreementdate 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), any Stockholders that on the date which shall be deemed null and void and without effect and will not be counted as a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) 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 (as defined below) shall apply solely with respect to one Registered Public Offering as to which it has made an effective Demand Request.
(c) The Company shall give prompt written request notice (the "Notice of the Company (a “Demand”Demand Request") for registration under the Securities Act of a number its receipt of any such Demand Request to all Specified Shareholders who hold of record any 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
: (i) the Registrable Securities which included in the Company has been so requested to register by the Requesting Stockholders Demand Request for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
a firm-commitment, underwritten public offering; and (ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect as to which Specified Shareholders who are the Company has received holders thereof shall have made a written request (a "Joining Request") to the Company for inclusion therein registration thereof within ten fifteen (1015) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements transmittal of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number such Notice of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own 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 Request by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 writingeach case as necessary to permit such holders, thattogether with a Demanding Shareholder (each, in its opiniona "Seller" and, collectively, the inclusion of all of the securities"Sellers"), including securities of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the sell 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) firstfirm-commitment, up to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the underwritten public offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Allied World Assurance Co Holdings LTD)
Demand Registration. (a) At any time after In the event the Holders have not sold all of their Registrable Securities within one year from the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(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 Shareshereof, if any, to be so registered.
(b) A Demand shall specify: (i) the Holder or Holders of an aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the Registrable Securities then outstanding propose to dispose of at least 20% of the then Registrable Securities (such Holder or Holders being herein called the "Initiating Holders"), the Initiating Holders may request, on one occasion, the Company, in writing, to effect such registration, stating the number of shares of Registrable Securities requested to be disposed of by such Stockholders to Initiating Holders (which shall be included in not less than 20% of the then Registrable Securities) and the intended method of disposition. Upon receipt of such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In additionrequest, the Company will give prompt written notice thereof to all other Holders whereupon such other Holders shall be entitled to postpone (upon give written notice to the Company within twenty (20) days after the date of the Company's notice (the "Notice Period") if they propose to dispose of any shares of the Registrable Securities pursuant to such registration, stating the number of shares of the Registrable Securities to be disposed of by such Holder or Holders and intended method of disposition. The Company shall effect promptly after the Notice Period the registration under the 1933 Act of all Stockholders) shares of the Registrable Securities specified in the requests of the Initiating Holders and the requests of the other Holders; provided, however, that such period may be delayed by the Company for a reasonable period of time not up to exceed ninety (90) days in succession total if, (A) upon the filing or advice of counsel, at the effectiveness of a time the Company is required to exercise its best efforts to cause such registration statement for any Demand Registration (but no more than twiceto become effective, or for more than one hundred such delay is advisable and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness best interests of the registration statement relating to such Demand Registration would cause Company because of the disclosure existence of material, non-public information that material information, or (B) to allow the Company has a bona fide business purpose for preserving as confidential. In the event to complete any pending audit 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 6.4its financial statements.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Employment Agreement (Diplomat Corp)
Demand Registration. (a) At 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 Initial Public Offering, any time after the date that is one hundred and eighty (180) days after the date hereof (Holder or such earlier date Holders (i) as would permit the Company desire to cause any filings required hereunder to be filed on the 180th day after the date hereof sell shares of Registrable Securities owned by such Holder or Holders and (ii) as is permitted by waiver an exemption from registration under the IPO Underwriting AgreementSecurities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), any Stockholders that on is not available to enable the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled Holder or Holders to make a 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 (a “Demand”) for effect the registration under the Securities Act of a number all or part of such Holder's or Holders' Registrable Securities and specifying the intended method of disposition thereof, but subject to the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities thatSecurities, when taken together and the Company shall file with the number of Registrable Securities requested Commission as promptly as practicable after sending such notice, and use its best efforts to be registered cause to become effective, a registration statement under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than registering the Registrable Amount (a “Demand Registration”) offering and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act sale of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;Holder or Holders; and
(ii) all other Registrable Securities which the Company has been requested to register pursuant by any other Holder thereof by written request given to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering 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), but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofmethod thereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
(b) A Demand shall specify: (i) ; provided, that the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect file a registration statement relating to any Demand Registration registration request under this
Section 2(a) (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50unless the aggregate requests by the Holder or Holders for such registration cover not less than 5.0% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were includedoutstanding Common Stock, (B) with respect to more than an aggregate of 3 registrations (which 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) under this Section 2(a), (C) within ninety (90) day a period of 180 days after the effective date of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration any registration request under this Section 2(a), or (D) if with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and regulations thereunder, or the form on which the registration statement is to be filed, would cause require the disclosure conduct of material, non-public information that an audit other than the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement regular audit conducted by the Company at the end of its 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 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 6.4.
(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 an audit other than 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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowregular audit); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At any time Subject to the provisions hereof, after the date that is one hundred Restricted Term, the Investor and eighty any Permitted Transferee of the Investor (180each a “Holder”) days after holding, collectively, a majority of the date hereof (or such earlier date (i) as would permit Registrable Securities then outstanding shall have the right to require the Company to cause any filings required hereunder file a Registration Statement registering for sale all or part of the Shares held by or issuable to be filed on them (collectively, the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting StockholderRegistrable Securities”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the terms of this AgreementCompany (an “Underwritten Offering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable Law. The Company shall use its commercially reasonable best efforts to effect the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register as soon as practicable (and in any case by the Requesting Stockholders applicable Filing Date); provided, however, that the Holders shall not make a request for disposition in accordance with the intended method of disposition stated in such a Demand which may be an Underwritten Offering;
(iiRegistration under this Section 2.1(a) all other for Registrable Securities which having an anticipated aggregate offering price of less than $25,000,000. The Holders shall be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect two (iii2) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredDemand Registrations under this Agreement.
(b) A If the offering of the Registrable Securities pursuant to such Demand shall specify: Registration is an Underwritten Offering, (i) the Company shall select the underwriter(s) of the Underwritten Offering, subject to the approval of the Holders of a majority of the Registrable Securities to be sold in the Underwritten Offering, such approval not to be unreasonably withheld, conditioned 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 by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering; 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.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) give written advice to the Company of the number of securities to which such registration 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) so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) include in such registration (a) first, the number of 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 with respect to such registration, and (b) second, the number of securities requested to be included in such registration by all Holders of Registrable Securities to be included in such Underwritten Offering, pro rata on the basis of the aggregate number of Registrable Securities requested to be registered in included by each such Demand RegistrationHolder, (ii) and on a pari passu basis with the intended method holders of disposition in connection with such Demand Registration, to contractual registration rights provided under the extent then known Share Purchase Agreement by and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, between the Company shall give written notice and C.P. Pharmaceuticals International C.V. dated as of such Demand to all other Stockholders. Subject to Section 6.1(fMay 6, 2016 (the “Pfizer Holders”), 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) A registration will not be deemed to have been effected as a Demand Registrations shall 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 on included in the registration by the Holders are included in such registration form 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 (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 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, then such registration will be deemed not to have been effected for which purposes of the last sentence of Section 2.1(a). If (i) a registration requested pursuant to this Section 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 2.1 does not remain continuously effective until the completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company is eligible as shall be selected by the Requesting Stockholders, including, continue to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any a Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to this Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 2.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration. If, in connection with a Registration at any time prior to the commencement of marketing of such Demand Registration, any managing underwriter (or, if provided that such registration nonetheless shall count as a 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 for purposes of the securities, including securities last sentence of the 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowSection 2.1(a); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) i. At any time after and from time to time, BDI may make a written demand for one underwritten registration of all or part of its Registrable Securities under the date that is one hundred Securities Act (any such registration, a “Demand Registration” and eighty 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 (180each such holder including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Issuer within fifteen (15) days after the date hereof (or receipt by such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request holder of the Company (a “Demand”) for 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 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company Issuer has been so requested to register 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 Requesting Stockholders Issuer (in the case of an offering in which the Issuer does not intend to offer any of its capital stock for disposition in accordance sale, with the intended method consent of disposition stated in BDI, such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, consent not to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(funreasonably withheld)) and provided that at least 50% other documents reasonably required under the terms of the number of Registrable Securities requested by applicable underwriting arrangements and shall take such Stockholders other actions as are reasonably required in order to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, expedite or facilitate the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 disposition of the Registrable Securities included in such Demand Registrationunderwriting.
ii. If, in connection with A registration will count as a Demand Registration, any managing underwriter Registration if (or, if such Demand A) the Registration Statement is not an Underwritten Offering, a nationally recognized investment bank engaged in connection filed 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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter Commission with respect to such Demand Registration orand has been declared effective, if (B) the Registration Statement is withdrawn after filing at the request of a majority-in-interest of the Demanding Holders or (C) the Registration Statement is withdrawn prior to filing at the 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 is will be deemed not an Underwritten Offeringto have been declared effective, any investment bank engaged in connection therewithunless and until, shall be selected (i) by Holdingssuch stop order or injunction is removed, for so long as the Secondary Class B Condition is satisfiedrescinded or otherwise terminated, and thereafter (ii) by a majority-in-interest of the Stockholder participating in such 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 holds (together with its Permitted Transferees who are Stockholders) a 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 the underwriting in accordance with the 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. Any such limitation shall be imposed in such manner so as to avoid any diminution in the number of shares 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 shares to be registered for sale by BDI and the other Investors.
iv. If BDI disapproves of the terms of any underwriting or is not entitled to include all of its Registrable Securities in such underwritten offering, BDI may elect to withdraw from such offering by giving written notice to the Issuer and the Underwriter or Underwriters of its request to withdraw prior to the filing of the Registration Statement. If BDI withdraws from a proposed offering relating to a Demand Registration constituting a plurality because it is not entitled to include all of all its Registrable Securities included in such underwritten offering due to the inclusion of securities to be sold for the account of the Issuer, then such registration shall not count as a Demand Registration. No other withdrawal by an Investor from a proposed offering relating to a Demand Registration shall cause such registration not to count as a Demand Registration except for a Registration Statement that is withdrawn prior to filing at the request of majority-in-interest of the Demanding Holders and as to 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. (1) A Holder of Registrable Securities (the “Initiating Holder”) may, at any time and from time to time, provided that: (a) At any time after EV Metals has subscribed for at least an aggregate of US$4,000,000 of Shares in connection with the date that is one hundred Offering; and eighty (180b) days after the date hereof at such time, such Holder, collectively with its Affiliates, beneficially owns or exercises control or direction over 5% or more of all outstanding Shares (and provided such beneficial ownership or such earlier date (i) as would permit control was obtained without contravening applicable Securities Laws), require the Company to cause file one or more Prospectuses and take such other steps as may be reasonably necessary to facilitate a secondary offering in Canada, except for the province of Quebec, of all or any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request portion of the Company (a “Demand”) for 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 Shares held by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than Initiating Holder (the Registrable Amount (a “Demand Registration”) and thereupon the Company will), subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give giving written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) . The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (shall, subject to Section 6.1(f)) and provided that at least 50% applicable Securities Laws, use its commercially reasonable efforts to file one or more Prospectuses under applicable Securities Laws in order to permit the Offering of all or any portion of the number of Initiating Holder’s Registrable Securities requested by such Stockholders to be included in such Demand Registration. The Parties shall cooperate in a timely manner in connection with such secondary offering and the procedures in Schedule “A” shall apply.
(2) 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 were includedin the event the Company reasonably determines in good faith that (i) either (A) the effect of the filing of a Prospectus would impede the ability of the Company to consummate a significant transaction (including, without limitation, a financing, an acquisition, a restructuring or a merger), (B) within ninety (90) day of any other Underwritten Offering pursuant there exists at the time material non-public information relating to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of materialwhich would be detrimental to the Company or the qualification or 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 a bona fide business purpose for preserving as confidential. In confidential or (C) if applicable, require the event Company to prepare and file new technical reports under NI 43 101 - Standards of Disclosure for Mineral Projects of the Canadian Securities Administrators; and (ii) it is therefore in the best interests of the Company to defer the filing of a postponement 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 Company shall give written notice to the Holder (x) of its determination to postpone filing of the Prospectus and, subject to compliance by the Company with Securities Laws, of the filing or effectiveness facts giving rise to the reason for the postponement and (y) of the time at which it determines the reason for postponement to 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 registration statement for number of Shares less than 1,000,000;
d) a Demand RegistrationRegistration 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.
(3) Any request by the Initiating Holder pursuant to Section 3.1(1) hereof shall (a) specify the number of Shares which such Initiating Holder intends to offer and sell, (b) express the intention of such Initiating Holder to offer or cause the offering of such Shares, (c) describe the nature or methods of the proposed offer and sale thereof and the provinces and territories of Canada in which such offer shall be made, (d) contain the 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 (e) specify whether such Offering and sale shall be made by an Underwritten Offering.
(4) In the case of an Underwritten Offering initiated pursuant to this Section 3.1, the holders of a majority of Registrable Securities held by the Requesting Stockholders Initiating Holder shall have the right to withdraw select the managing underwriter or underwriters of such Demand Registrable Securities, provided, however, that such selection shall also be reasonably satisfactory to the Company. The Company shall be entitled to retain counsel of its choice to assist it in accordance with fulfilling its obligations under this Section 6.43.1.
(f5) The Company shall not have the right to include in 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 Shares or other securities of the Company that which 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, representing up to 15% of the number of Registrable Securities requested subject to such Demand Registration, provided that, if the managing underwriter or underwriters impose a limitation on the number of Shares or on the number or kind of other 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 price range reasonably acceptable to the Initiating Holder or marketing factors require the limitation of the number of securities which may be included in such Demand Registration Public Offering, such Offering shall be comprised of Shares selected according to the following priority:
a) first, the Registrable Securities offered by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (iiInitiating Holder;
b) second, if there are additional securities which may be underwritten within a price range reasonably acceptable to the Initiating Holder, considering marketing factors, without leading to undue repercussions on the Public Offering of the securities offered after taking into account the inclusion of all the securities required under paragraph (a) above, the securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested required to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companyincluded.
(g6) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not In the case of an Underwritten Offering, an Initiating Holder may participate in the negotiations of the terms of any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfiedunderwriting agreement. An Initiating H▇▇▇▇▇’s participation in, and thereafter (ii) by the Stockholder participating in such Demand Registration Company’s completion of, the Underwritten Offering is conditional upon the Initiating Holder and the Company agreeing that holds (together with its Permitted Transferees who the terms of any underwriting agreement are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationsatisfactory to them, acting reasonably.
Appears in 1 contract
Sources: Investor Rights Agreement (International Battery Metals Ltd.)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) 180 days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but becomes subject to Section 6.1(f); all to 13 or Section 15(d) of the extent necessary to permit Exchange Act, the disposition holders of at least fifty percent (in accordance with the intended methods thereof50%) of the Registrable Securities and may request the additional Class A SharesCompany register under the Securities Act the Registrable Securities held by such requesting holders in a 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, if anyhowever, that the holders of Registrable Securities shall be entitled under this Section 2 to be so registered.
(b) A Demand shall specify: (i) no more than the number of shares of Common Stock sufficient to yield net proceeds equal to the aggregate number of Registrable Securities requested to be registered in such multiplied by the per share initial public offering price multiplied by 0.33 ("Minimum Demand RegistrationProceeds"); provided further however, that if the underwritten public offer (ii) the intended or other method of disposition in connection with such distribution) does not yield the Minimum Demand RegistrationProceeds, the holders of Registrable Securities shall be entitled to request additional registrations until the extent then known and (iii) holders of Registrable Securities shall have yielded the identity of the Requesting Stockholder (or Requesting Stockholders)Minimum Demand Proceeds. Within five (5) days after Upon receipt of a Demandsuch request, the Company shall give written promptly deliver notice of such Demand request to all other Stockholders. Subject Persons holding Registrable Securities who shall then have thirty (30) days to Section 6.1(f), notify the Company in writing of their desire to be included in such registration. The right of any Person to participate in such registration shall include 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 Demand Registration covered by underwritten public offering (or such Demand 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 with respect to which the Company has received a written whose holders request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth participation in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of under the SEC for which Securities Act and shall keep such registration effective until the Company is eligible as Registrable Securities thereunder shall be selected by the Requesting Stockholdershave been sold, including, but only to the extent permissibleprovided for in the following provisions of this Agreement; provided, an automatically effective registration statement or an existing effective registration statement filed by however, that the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated required to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights registration pursuant to a request under this Section 6.2 2 more than one (subject to Section 6.1(f)1) and time for the holders of the Registrable Securities as a group; provided further however, that at least 50% of if a registration statement does not include the number of Registrable Securities requested by such Stockholders the holders thereof to be included in such Demand Registration were includedregistration statement, (B) within ninety (90) day of any other Underwritten Offering it shall not be counted as a registration statement initiated pursuant to this Section 6.3(e)2. In additionNotwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within 180 days after 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 effective date of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement 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 filing offering (if the offering is underwritten) or effectiveness of a registration statement for a Demand Registration, the holders of a majority of the shares of Registrable Securities held by who requested the Requesting Stockholders shall have registration (if the right to withdraw offering is not underwritten), determine(s) in good faith that the inclusion of such Demand in accordance shares will interfere with Section 6.4.
(f) The Company shall not include any securities other than the successful marketing of the shares of Registrable Securities to be included in a Demand Registrationthe registration. If the managing underwriter of such offering determines in good faith that the number of securities sought to be offered should be limited due to market conditions, except with then the written consent number of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities securities to be included in such Demand Registration. Ifunderwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter, 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 provided that 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 shares to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to excluded shall 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 determined in the following order of priority: (i) firstsecurities held by any other Persons (other than the holders of Registrable Securities) having a contractual, up incidental "piggy back" right to include such securities in the registration statement, (ii) securities offered on behalf of the Company, (iii) Registrable Securities of holders who did not make the original request for registration and, if necessary, and (iv) Registrable Securities of holders who requested such registration pursuant to Section 2. If there is a reduction of the number of Registrable Securities requested pursuant to clauses (iii) or (iv), such reduction shall be made on a pro rata basis (based upon the aggregate number of Registrable Securities held by such holders).
(c) The Company shall have the right to approve the managing underwriter chosen by the holders of a majority of the Registrable Securities to be included sold in such Demand Registration by 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 StockholdersCommission is applicable) to become effective within 90 days following the effective date of any registration required pursuant to this Section 2.
(d) If, at the time of any request to register Registrable Securities pursuant to Section 2(a), the Company is preparing a registration statement for a public offering (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 of the Commission is applicable) which in fact is filed and becomes effective within ninety (90) days after the request, or is engaged in any activity (including a concurrent or proposed security issuance or - 4 - acquisition) which, in the opinion good faith determination of the underwriter can Company's board of directors, would be sold without adversely affecting affected by the marketability requested registration to the material detriment of the offeringCompany, pro rata among then the Company may at its option direct that such Stockholders requesting such Demand Registration on request be delayed for a period (the basis "Black-Out Period") not in excess of 120 days from the number effective date of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities offering or the Company proposes to sell; and (iii) third, all other securities date of the Company duly requested to be included in such registration statement, pro rata on the basis of the number commencement of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration oractivity, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (iicase may be. The aggregate amount of Black-Out Periods in any consecutive twelve month period shall not exceed 120 days. Nothing in this Section 2(d) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) shall preclude a number holder of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationfrom enjoying registration rights which it might otherwise possess under Section 3 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Preferred Payment Systems Inc)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) 180 days after the date hereof (or such earlier date (i) as 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 under by the underwriters of the lock-up provisions in the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) Holder or Holders shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities that, when taken together with that in the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, aggregate equals or is greater than the Registrable Minimum Registration Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its commercially reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders Holder or Holders for disposition in accordance with the intended method of disposition stated in such Demand Demand, which may be an Underwritten Offering;; and
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Ordinary Shares which that the Company may elect to register in connection with any offering of Registrable SecuritiesSecurities pursuant to this Section 4.1, but subject to Section 6.1(f4.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder Holder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(bHolders).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings Each Holder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are StockholdersHolders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Minimum Registration Amount.
(d) Demand Registrations shall be on such registration form of the SEC Commission for which the Company is eligible as shall be selected by the Requesting Stockholdersrequesting Holder whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SECCommission, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days three months of a “firm commitment” Underwritten Offering in which all Stockholders of the Holders were given the opportunity to exercise “piggyback” rights pursuant to Section 6.2 4.2 (subject to Section 6.1(f)4.1(f) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders Holders to be included in such Demand Registration were included, ) or (B) within ninety (90) day three months of any other Underwritten Offering pursuant to Section 6.3(e4.1(a) and Section 4.3(f). In addition, the Company shall be entitled to postpone (upon written notice to all StockholdersHolders) for a reasonable period of time not to exceed ninety (90) 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 one hundred and twenty (120) 90 days in the aggregate, in any period of twelve (12) consecutive monthstwelve-month period) 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 (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 otherwise required to disclose at such time (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 RegistrationRegistration due to a Disadvantageous Condition, the holders of a majority of Registrable Securities held by the Requesting Stockholders Holder(s) shall have the right to withdraw such Demand in accordance with Section 6.44.4.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders 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, 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 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 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 in such Demand Registration by the StockholdersHolders, which, in the opinion of the underwriter underwriter, can be sold without adversely affecting the marketability of the offering, offering pro rata among such Stockholders Holders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders Holders; and such Stockholders that are Piggyback Sellers (as defined below); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting Holders holding a plurality of all Registrable Securities included in such Demand RegistrationDemand.
Appears in 1 contract
Sources: Shareholders Agreement (Hanson Building Products LTD)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement)Closing Date, any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders Avista Holder or PGS may request, in writing (a “Requesting StockholderDemand Request”) shall be entitled to make a written request of ), that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or part of its or their 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount Shares (a “Demand Registration”). Notwithstanding the foregoing, no Demand Request will be effective hereunder unless the Registrable Shares proposed to be sold by the Holder or Holders requesting the Demand Registration (the “Requesting Holders,” which term shall include parties deemed “Requesting Holders” pursuant to Section 2.1(g) and thereupon hereof) represent, in the Company willaggregate, subject to more than 25% of the terms total number of this AgreementRegistrable Shares held by all Avista Holders or PGS, use its reasonable best efforts to effect as the registration as promptly as practicable under the Securities Act of:case may be.
(ib) Each Demand Request shall specify the number of Registrable Securities which the Company has been so requested Shares proposed to register by the Requesting Stockholders for disposition in accordance with be sold and the intended method of disposition stated in such Demand which may be of the Registrable Shares (including an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register Offering pursuant to Section 6.1(b); and
(iii2.1(d) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject or a Shelf Registration pursuant to Section 6.1(f2.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f2.1(h), the Company shall include in file the Demand Registration covered within 90 days after receiving a Demand Request (the “Required Filing Date”) and shall use all commercially reasonable efforts to cause the same to be declared effective by the SEC as promptly as practicable after such filing; provided, however, that the Company shall not be required to effect (i) more than four (4) Demand all Registrations pursuant to Demand Requests made by the Avista Holders and (ii) more than four (4) Demand Registrations pursuant to Demand Requests made by PGS, each pursuant to Section 2.1(a); provided, further, that if any Registrable Securities Shares requested to be registered pursuant to a Demand Request are excluded from the applicable Demand Registration pursuant to Section 2.1(e) below, the applicable Holders shall each have the right, with respect to which the Company has received a written each such exclusion, to request for inclusion therein within ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a one additional Demand as set forth in this Section 6.1(b)Registration.
(c) For so long A registration will not count as a Demand Registration until it has become effective (unless the Secondary Class B Condition Requesting Holders withdraw all their Registrable Shares and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration unless the Requesting Holders pay all Registration Expenses, as hereinafter defined, in connection with such withdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Shares pursuant to a registration is satisfiedinterfered with by any stop order, Holdings shall injunction or other order or requirement of the SEC or other governmental agency or court, such registration will be entitled deemed not to an unlimited number of have been effected and will not count as a Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable AmountRegistration.
(d) The Requesting Holders may provide in the Demand Registrations Request that the offering of Registrable Shares pursuant to a Demand Registration shall be on such registration in the form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” underwritten offering (an “Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(eOffering”). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period The Requesting Holders of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 Shares to be registered in a Demand Registration shall select the investment banking firm or firms to manage the Underwritten Offering, provided that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any registration pursuant to Section 2.1(a) unless such Person (i) agrees to sell such Person’s Registrable Shares on the basis provided in any underwriting arrangements described above and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided, however, that no such Person shall be required to make any representations or warranties in connection with any such registration other than representations and warranties as to (A) such Person’s ownership of his or its Registrable Shares to be transferred free and clear of all liens, claims and encumbrances, (B) such Person’s power and authority to effect such transfer and (C) such matters pertaining to compliance with securities laws as may be reasonably requested; provided, further, however, that the obligation of such Person to indemnify pursuant to any such underwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Shares, and the liability of each such Person will be in proportion to the number of Registrable Shares included in such Demand Registration. If, and provided, further, that such liability will be limited to the net amount received by such Person from the sale of his or its Registrable Shares pursuant to such registration.
(e) No securities to be sold for the account of any Person (including the Company) other than a Requesting Holder shall be included in connection with a Demand Registration, any Registration for an Underwritten Offering unless the managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged or underwriters shall advise the Company or the Requesting Holders in connection with such Demand Registration) advises the Company, in writing, that, in its opinion, writing that the inclusion of all of the securities, including such securities of the Company that are will not Registrable Securities, sought to be registered in connection with such Demand Registration would materially and adversely affect the marketability price or success of the Registrable Securities sought to be sold pursuant theretoUnderwritten Offering (a “Material Adverse Effect”). Furthermore, then in the event the managing underwriter or underwriters shall advise the Company shall include in such registration statement only such or the Requesting Holders that even after exclusion of all 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 other Persons pursuant to the number immediately preceding sentence, the amount of Registrable Securities requested Shares proposed to be included in such Demand Registration by Requesting Holders is sufficiently large to cause a Material Adverse Effect, the Stockholders, which, in the opinion Registrable Shares of the underwriter Requesting Holders to be included in such Demand Registration shall equal the number of shares which the Company is so advised can be sold in such offering without adversely affecting the marketability of the offering, a Material Adverse Effect and such shares shall be allocated pro rata among such Stockholders requesting such Demand Registration the Requesting Holders on the basis of the number of Registrable Shares owned by each such securities held Requesting Holder.
(f) The Requesting Holders may provide in the Demand Request that the offering of Registrable Shares pursuant to a Demand Registration shall be in the form of a “shelf offering” under the Securities Act to be made on a continuous basis pursuant to Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC (such offering, a “Shelf Offering”). The Shelf Offering shall be on Form S-1 (or on Form S-3 or any similar successor form, if the Company is eligible to utilize such Form to register its shares). Subject to the terms of this Agreement, the Company shall use its best efforts to cause the Shelf Offering to be declared effective under the Securities Act as promptly as possible after the filing thereof and shall use its best efforts to keep such Shelf Offering continuously effective under the Securities Act until all Registrable Shares covered by such Stockholders and such Stockholders that are Piggyback Sellers (Shelf Offering have been sold or may be sold at one time pursuant to Rule 144 as defined below); (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 number of such other securities requested to be included or such other method determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or the affected PGS Holders, as the case may be.
(g) Any investment bank(sUpon receipt of any Demand Request (including a Demand Request pursuant to Section 2.1(i)), the Company shall promptly (but in any event within 10 days) that will serve as an underwriter with respect to give written notice of such proposed Demand Registration or, if such to all other Holders (which notice shall include the number of Registrable Shares of the Requesting Holder proposed to be included in the Demand Registration is not an Underwritten Offeringand a description of the proposed disposition of such Registrable Shares), any investment bank engaged in connection therewithwho shall have the right, shall be selected (i) exercisable by Holdingswritten notice to the Company within 20 days of their receipt of the Company’s notice, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating to elect to include in such Demand Registration that holds (together with its Permitted Transferees who are Stockholdersincluding a Shelf Funded Repurchase pursuant to Section 2.1(i)) a number such portion of their Registrable Securities Shares as they may request. All Holders requesting to have all or any part of their Registrable Shares included in a Demand Registration in accordance with the preceding sentence shall be deemed to be “Requesting Holders” for purposes of this Agreement.
(h) The Company may defer the filing (but not the preparation) of a registration statement required by Section 2.1(a) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date of the registration statement contemplated by clause (ii) below) if (i) at the time the Company receives the Demand Request, the Company or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board of Directors of the Company determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders or (ii) prior to receiving the Demand Request, the Board of Directors had determined to effect a registered underwritten public offering of the Company’s securities for the Company’s account and the Company had taken substantial steps (including, but not limited to, selecting a managing underwriter for such offering) and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a registration statement pursuant to this Section 2.1(h) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company’s account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 2.1(h), the Company shall promptly (but in any event within ten days), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.1(h) and a general statement of the reason for such deferral and an approximation of the anticipated delay. Within 20 days after receiving such certificate, the holders of a majority of the Registrable Shares held by the Requesting Holders and for which registration was previously requested may withdraw such Demand Registration constituting Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to have been made for all purposes of this Agreement. The Company may defer the filing of a plurality particular registration statement pursuant to this Section 2.1(h) only once.
(i) In lieu of any of the Demand Registrations and if the Company has established a “shelf offering” of newly issued shares of Common Stock (the “Company Shelf Shares”) under the Securities Act to be made on a continuous basis pursuant to Rule 415 on Form S-3 (the “Company Shelf”), each of the Avista Holders and PGS may issue a Demand Request for the Company to sell Company Shelf Shares and use the proceeds from such sale to purchase all or any portion of the Registrable Shares held by such Requesting Holder (the “Shelf Funded Repurchase”) at a price equal to the price at which the Company Shelf Shares were sold less any underwriting discounts and commissions. Subject to the terms of this Agreement, the Company shall use its best efforts to keep such Company Shelf continuously effective under the Securities Act until all Registrable Securities Shares included in the applicable Demand Request have been purchased by the Company or may be sold at one time pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter to such Demand Registrationeffect, addressed and acceptable to the Company’s transfer agent and the affected Avista Holders or PGS, as the case may be. The Company will not be responsible for any fees or expenses incurred by the Avista Holders or PGS in connection with the Shelf Funded Repurchase other than as provided in Section 2.7 hereto.
Appears in 1 contract
Demand Registration. (a) At Subject to Section 1(b) and Section 3 below, at any time after the date that is one hundred and eighty (180) days after hereof if at the date hereof time Investor (or such earlier date 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 (ior, if there are one or more permitted assignees of Investor, persons holding a majority, in the aggregate, of the Purchase Shares and NRC Shares acquired by Investor under the April 15 Agreements) as would permit shall have the Company right to cause any filings required hereunder NRC to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date effect a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities 1933 Act of such Purchase Shares and such NRC Shares for an underwritten public offering of all or part of such Purchase Shares and such NRC Shares (the Purchase Shares and such NRC Shares being (collectively referred to as "Registrable Securities") by delivering written notice of its demand to cause NRC to effect such a registration to NRC, specifying the number of shares of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered included in such registration and the intended method of distribution thereof (the "Demand Registration Request"). NRC shall, as expeditiously as possible under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreementcircumstances, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities 1933 Act of:
(i) and to effect any notification, registration or qualification under any applicable state securities law of the Registrable Securities which the Company NRC has been so requested to register by in the Requesting Stockholders Demand Registration Request for disposition in accordance with the intended method of disposition stated in such the Demand which may Registration Request (except that NRC shall not be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested obligated to list any of its securities on any additional stock exchange or register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection or comply with any offering laws, rules or regulations of Registrable Securities, but subject to Section 6.1(f); 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 intended methods thereof) method of distribution set forth in the Registrable Securities and the additional Class A Shares, if any, to be so registeredDemand Registration Request.
(b) A Demand The demand registration rights granted in Section 1(a) above shall specifyonly be exercised concurrently with, and not in addition to, the exercise by Investor of the demand registration rights granted to Investor by NRC pursuant to the April 15 Agreements. Notwithstanding anything to the contrary contained in this Exhibit B or in the April 15 Agreements (including Section 1(b)(i) of Exhibit C to each of the April 15 Agreements), Investor shall have the right to 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 aggregate, subject to the following limitations: (i) the aggregate number of Registrable Securities requested to be registered in such Demand RegistrationInvestor must wait at least six (6) months between exercising its demand registration rights, and (ii) each Demand Registration Request by Investor must be for at least 25% of the intended method shares of disposition in connection with such Demand Registration, Common Stock then owned by Investor which were originally purchased pursuant to the extent then known and (iii) the identity of the Requesting Stockholder (April 15 Agreements or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), the Company shall include this Agreement 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b)aggregate.
(c) For so long Subject to Section 3 below, NRC may elect to include in any registration statement and offering made pursuant to this Section 1 authorized unissued NRC Shares or NRC Shares held by NRC as the Secondary Class B Condition is satisfiedtreasury shares; provided, Holdings that such NRC Shares shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested permitted to be included in such registration statement, pro rata on only to the basis extent that it is pursuant to and subject to the terms of the number of such other securities requested to be included underwriting agreement or such other method determined arrangements entered into by the CompanyInvestor exercising the demand registration rights granted under this Section 1.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Mil Investments S A)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) 180 days after the date hereof (or such earlier date (i) as 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 under of the IPO Underwriting Agreement), any Stockholders Person that on the date is a Demand (as hereinafter defined) is made constitute Demand Stockholders Stockholder (a “Requesting Stockholder”) on the date a Demand is made shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are StockholdersAffiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its commercially reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand Demand, which may be an Underwritten Offering;
(ii) all other Registrable Securities which that the Company has been requested to register by the Registering Stockholder pursuant to Section 6.1(b4.1(b); and;
(iii) all Class A Shares which shares of Common Stock that the Company may elect to register in connection with any offering of Registrable SecuritiesSecurities pursuant to this Section 4.1, but subject to Section 6.1(f4.1(f); and
(iv) 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 SharesCommon Stock, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all any other StockholdersPersons that on the date a Demand is delivered to the Company is a Stockholder. Subject to Section 6.1(f4.1(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 ten (10) five days after such notice by the Company’s notice required by this paragraph Company has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b4.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC Commission for which the Company is eligible as shall be selected by the Requesting StockholdersStockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SECCommission, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days three months of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 4.2 (subject to Section 6.1(f4.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, ) or (B) within ninety (90) day three months of any other Underwritten Offering pursuant to Section 6.3(e4.3(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) 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 one hundred and twenty (120) 90 days in the aggregate, in any period of twelve (12) 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 6.44.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below)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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by HoldingsFIG LLC, for so long as a majority of the Secondary Class B Condition Common Stock of the Company is satisfiedowned by the Initial Stockholder, its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are StockholdersTransferees) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Stockholders Agreement (Nationstar Mortgage Holdings Inc.)
Demand Registration. (a) At Subject to the provisions hereof, at any time on or after the date that is one hundred and eighty (1801) days after year anniversary of the date hereof Closing Date (or such earlier date (i) as would permit defined in the Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof file a Registration Statement registering for sale all or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request part of the Company (a “Demand”) for registration their respective Registrable Securities 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (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 terms receipt of this Agreementsuch 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 the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by register; provided, however, that (i) the Requesting Stockholders Holders shall not make a request for disposition in accordance with the intended method a Demand Registration under this Section 4.1(a) for Registrable Securities having an anticipated aggregate offering price of disposition stated in such Demand which may be an Underwritten Offering;
less than $5,000,000, (ii) all other Registrable Securities which the Holders will not be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) all Class A Shares which the Company may elect will not be obligated to register effect more than one (1) Demand Registration in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition six (in accordance with the intended methods thereof6) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredmonth period.
(b) A The offering of the Registrable Securities pursuant to such Demand shall specify: Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the aggregate number Company may designate the managing underwriter(s) of Registrable Securities requested 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 registered 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 Demand RegistrationUnderwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 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) the intended method of disposition no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in connection with such Demand Registrationa registration other than customary representations, to the extent then known warranties and agreements and (iii) the identity liability of the Requesting Stockholder 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 Requesting Stockholders). Within five (5) days after receipt of a Demandbased 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 shall give written notice by or on behalf of such Demand to all other Stockholders. Subject to Section 6.1(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 Holder expressly for inclusion therein within ten and (10b) days 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 Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form disposition of the SEC for which 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 Company is eligible as shall be selected by basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any Demand Registration twelve (A12) within ninety month period, and (90b) days of a “firm commitment” in any Underwritten Offering during any lock-up period required by the underwriter(s) in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% 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 such Stockholders the Holders thereof to be included in such Demand Registration were includedregistration that does not exceed such Underwriters’ Maximum Number, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 registered in connection with such Demand Registration would adversely affect allocated pro rata among the marketability Holders thereof on the basis of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to 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 such 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 StockholdersSEC, which, in the opinion at least 75% of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly Registrable Securities requested to be included in the registration by the Holders are included in such registration statementregistration, pro rata on and the basis 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 number SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of such other securities requested the Registrable Securities pursuant to be included or such other method determined the registration, and in each case less than all of the Registrable Securities covered by the Company.
effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (gii) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration orif, if such Demand Registration is not in the case of an Underwritten Offering, any investment bank engaged in connection therewiththe Company fails to provide Full Cooperation, shall then such registration will be selected deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.1(a). If (i) by Holdings, for so long a registration requested pursuant to this Section 4.1 is deemed not to have been effected as the Secondary Class B Condition is satisfied, and thereafter a Demand Registration or (ii) the registration requested pursuant to this Section 4.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Stockholder participating in Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number pursuant to this Section 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 4.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration constituting a plurality at any time prior to the commencement of all Registrable Securities included in 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 4.1(a).
Appears in 1 contract
Sources: Securities Purchase Agreement (Parkway Properties Inc)
Demand Registration. (a) At any time after and from time to time beginning on the date the Company is eligible to use Form S-3 for the offer and sale of the Registrable Securities, any Holder or group of Holders (together with any of their respective Affiliates or Related Funds) that is one hundred hold, in the aggregate, at least five percent (5%) of the outstanding Common Stock at such time, may request in writing (“Demand Registration Request”) that the Company effect the registration of all or part of such Holder’s or Holders’ Registrable Securities with the Commission under and eighty in accordance with the provisions of the Securities Act (180) days each, a “Demand Registration”). The Company will file a Registration Statement covering such Holder’s or Holders’ Registrable Securities requested to be registered, and shall use its reasonable best efforts to cause such Registration Statement to be declared effective, as promptly as practicable after receipt of such request; provided, however, that the date hereof (or such earlier date Company will not be required to file a Registration Statement pursuant to this Section 5(a):
(i) as would permit unless the Company to cause any filings required hereunder Registrable Securities requested to be filed on sold by the 180th day after the date hereof or Holders pursuant to such Registration Statement have an anticipated aggregate gross offering price (before deducing underwriting discounts and commissions) of at least $25 million;
(ii) as is permitted if the Registrable Securities requested to be registered are already covered by waiver under an existing and effective Registration Statement and such Registration Statement may be utilized for the IPO Underwriting Agreement)offer and sale of the Registrable Securities requested to be registered; or
(iii) if the number of Demand Registration Requests previously made pursuant to this Section 5(a) shall equal or exceed three (3) in any twelve (12)-month period; provided, any Stockholders however, that on the date a Demand Registration Request shall not be considered made for purposes of this clause (as hereinafter definediii) is made constitute Demand Stockholders unless the requested Registration Statement has been declared effective by the Commission for more than seventy-five percent (a “Requesting Stockholder”75%) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number full amount of Registrable Securities thatfor which registration has been requested.
(b) A Demand Registration Request shall specify (i) the then-current name and address of such Holder or Holders, when taken together with (ii) the aggregate number of Registrable Securities requested to be registered registered, (iii) the total number of Registrable Securities then beneficially owned by such Holder or Holders, and (iv) the intended means of distribution.
(c) The Company may satisfy its obligations under Section 5(a) hereof by amending (to the extent permitted by applicable law) any registration statement previously filed by the Company under the Securities Act by Act, so that such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the amended registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to statement will permit the disposition (in accordance with the intended methods thereofof disposition specified as aforesaid) of all of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(bfor which a Demand Registration Request has been properly made under Section 5(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders)hereof. Within five (5) days after receipt of a Demand, If the Company shall give written notice so amends a previously filed registration statement, it will be deemed to have effected a registration for purposes of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (105(a) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amounthereof.
(d) Demand Registrations shall be on such registration form The Company will use its reasonable best efforts to keep a Registration Statement that has become effective as contemplated by this Section 5 continuously effective, and not subject to any stop order, injunction or other similar order or requirement of the SEC for which Commission:
(i) in the Company is eligible as case of a Registration Statement other than a Shelf Registration Statement on Form S-3, until all Registrable Securities registered thereunder have been sold pursuant to such Registration Statement; and
(ii) in the case of a Shelf Registration Statement on Form S-3, until the earlier of: (x) three (3) years following the Effective Date of such Shelf Registration Statement on Form S-3; and (y) the date that all Registrable Securities covered by such Shelf Registration Statement on Form S-3 shall cease to be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the CompanyRegistrable Securities.
(e) The Holder or Holders making a Demand Registration Request may, at any time prior to the Effective Date of the Registration Statement relating to such registration, revoke their request for the Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days the registration of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% or part of the number of such Holder’s or Holders’ Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon providing a written notice to all Stockholders) for a reasonable period of time not the Company. If, pursuant to exceed ninety (90) days in succession the filing or preceding sentence, the effectiveness of a registration statement for any entire Demand Registration Request is revoked, then, at the option of the Holder or Holders who revoke such request, either (but no more than twice, i) such Holder or Holders shall reimburse the Company for more than one hundred all of its reasonable and twenty (120) days documented out-of-pocket expenses incurred in the aggregatepreparation, in any period of twelve (12) consecutive months) if the Board determines in good faith filing and in its reasonable judgment that the filing or effectiveness processing of the Registration Statement, which out-of-pocket expenses, for the avoidance of doubt, shall not include overhead expenses and which requested registration statement relating to such shall not count as one of the permitted Demand Registration would cause Requests hereunder or (ii) the disclosure requested registration that has been revoked will be deemed to have been effected for purposes 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 held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 6.45(a).
(f) The If a Registration Statement filed pursuant to this Section 5 is a Shelf Registration Statement, then upon the demand of one or more Holders, the Company shall not include any securities other than facilitate a “takedown” of Registrable Securities in a Demand Registration, except with the written consent form 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 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 or investment bank can be sold without such adverse effect as follows and in the following order manner and subject to the conditions described in Section 6 of priority: (i) firstthis Agreement, up to provided, that the number of Registrable Securities requested to be shares of Common Stock included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers underwritten “takedown” shall equal at least five percent (as defined below); (ii5%) 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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in outstanding shares of Common Stock at such Demand Registrationtime.
Appears in 1 contract
Sources: Registration Rights Agreement (Parker Drilling Co /De/)
Demand Registration. (a) At Upon written notice to the Issuer from one or more Holders at any time after the Effective Time (but not later than the date that is one hundred and eighty two years after the Effective Time) (180a "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 such request (or 20 days in the date hereof case 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 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 demand with respect to a two-tranche contemporaneous offering of Registrable Securities and related derivative securities shall be deemed to be only one demand) (each such registration being referred to herein as a "Demand Registration");
(ii) the Issuer shall not be required to effect a Demand Registration hereunder unless the aggregate market value of Registrable Securities to be registered pursuant to such Demand Registration is equal to or more than $100 million;
(iii) the Holders shall not be permitted to make a request for a Demand Registration more than once in any six-month period; and
(iv) the method of disposition requested by Holders in connection with any Demand Registration may not be a Rule 415 Offering without the Issuer's prior written consent, which consent shall be in the Issuer's sole discretion.
(b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to this Section 2.01 shall not be deemed to have been 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 has not become effective under the 1933 Act or if such Demand Registration, after it became effective under the 1933 Act, was not maintained effective under the 1933 Act (other than as a result of the request of Holders, or any stop order, injunction or other order or requirement of the Commission or other government agency or court solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such earlier date (i) as would permit shorter period ending when all 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities thatcovered thereby have been disposed of pursuant thereto) and, when taken together with as a result thereof, the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition cannot be distributed in accordance with the intended method plan of disposition stated distribution set forth in such Demand which may be an Underwritten Offering;the related registration statement.
(iic) all other 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 which requested by the Company has been requested to register Holders pursuant to Section 6.1(b)2.01(a) above; and
provided that if such Holders are advised in writing (iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all a copy to the extent necessary Issuer) by the lead or managing underwriter referred to permit in Section 2.03(b) that, in such underwriter's good faith view, all or a part of such Registrable Securities and additional equity securities cannot be sold and the disposition (inclusion of such Registrable Securities and additional equity securities in accordance with such registration would be likely to have an adverse effect on the intended methods thereof) price, timing or distribution of the offering and sale of the Registrable Securities and the additional Class A Sharesequity 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 be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above, would not exceed the number of securities that can, in the good faith view of such underwriter, be registered sold in such Demand Registration, (ii) the intended method of disposition in connection with offering without so adversely affecting such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountoffering.
(d) Within 10 days after delivery of a Demand Registrations Request by a Holder, the Issuer shall be on provide a written notice to each Holder, advising such registration form Holder of its right to include any or all of the SEC Registrable Securities held by such Holder for which the Company is eligible as shall be selected by the Requesting Stockholders, including, sale pursuant to the extent permissibleDemand Registration and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the Demand Registration. Any Holder may, an automatically effective registration statement or an existing effective registration statement filed within 10 days of delivery to such Holder of a notice pursuant to this Section 2.01(d), elect to so include Registrable Securities in the Demand Registration by the Company with the SEC, and shall be reasonably acceptable written notice to such effect to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of Issuer specifying the number of Registrable Securities requested desired to be so included by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4Holder.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. Subject to Section 2.2 (a) At c), at any time and from time to time after the date that is one hundred closing of an Initial Offering, the Holders of (x) twenty-five percent (25%) of all of the Registrable Securities or (y) fifty percent (50%) of the sum of the total number of Registrable Securities originally issued as Common Stock and eighty (180) days after the date hereof (or such earlier date (i) as would permit member of shares of Common Stock issuable in respect of the Series A Preferred Stock, shall have the right to require 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 under the IPO Underwriting Agreement), any Stockholders that on the date file a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration statement under the Securities Act covering all or part of their respective Registrable Securities, by delivering a number of Registrable Securities that, when taken together with written request therefor to the Company specifying the number of Registrable Securities requested to be registered under the Securities Act included in such registration by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) Holders and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register distribution thereof. All requests pursuant to this Section 6.1(b); and
(iii) all Class A Shares which 2.2 are referred to herein as "Demand Registration Requests," and the Company may elect registrations requested are referred to register in connection with any offering of Registrable Securitiesherein as "Demand Registrations." As promptly as practicable, but subject to Section 6.1(f); all to the extent necessary to permit the disposition no later than ten (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (510) days after receipt of a DemandDemand Registration Request, the Company shall will:
(a) promptly give written notice of such Demand the proposed registration, and any related qualification or compliance, to all other Stockholders. Subject to Section 6.1(f)Holders; and
(b) as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the Company shall include in the Demand Registration covered by sale and distribution of all or such Demand all portion of such Holder's or Holders' Registrable Securities as are specified in such request, together with respect to which all or such portion of the Company has received Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request for inclusion therein given within ten fifteen (1015) days after receipt of such written notice from the Company’s notice required by this paragraph has been given. Such written request shall comply with ; provided, however, that the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.2:
(i) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or
(ii) if the Company shall furnish to the Holders a certificate signed by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Registration to be effected at such time, in which event the Company shall have the right to defer the filing of the registration statement for a period of not more than one hundred twenty (120) days after receipt of the request of the Holder or Holders under this Section 2.2; provided that such right to delay a request shall be exercised by the Company no more than once in any one-year period, or
(iii) if the Company has already effected four (4) Demand Registrations for the Holders pursuant to this Section 2.2;
(iv) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance; or
(v) if the registration statement with respect to a Demand Registration (A) would be declared effective within a period of 180 days after the effective date of the registration statement pertaining to the Initial Offering or within a period of ninety days (90) days after the effective date of the registration statement pertaining to subsequent public offerings (other than registration statements relating to employee benefit plans or Rule 145 transactions).
(c) If the selling Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a “firm commitment” Underwritten Offering part of their request made pursuant to this Section 2.2 and the Company shall include such information in the written notice referred to in Section 2.2(a). In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the selling Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the selling Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). If any Holder is or will be unable to deliver any document reasonably required by the underwriters in connection with the sale of such Registrable Securities, including legal opinions and closing certificates, then the Company shall have no obligation to include such Registrable Securities in such registration. Notwithstanding any other provision of this Section 2.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten then the Company shall so advise all Stockholders were given “piggyback” rights Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities (and to any holders of registrable securities making a concurrent Demand Registration Request pursuant to Section 6.2 (subject to Section 6.1(f)2.2 of the Investor Rights Agreement) and provided that at least 50% of on a pro rata basis based on the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 proposed to be registered in connection with by all such Demand Registration would adversely affect the marketability of the selling Holders. Any Registrable Securities sought to be sold pursuant thereto, then the Company shall include in excluded or withdrawn from 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, underwriting shall be selected (i) by Holdings, for so long as withdrawn from the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationregistration.
Appears in 1 contract
Demand Registration. (a) At any time on and after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting of this Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, that equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b5.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f5.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five two (52) days Business Days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f5.1(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 ten five (105) days Business Days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b5.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Each Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and Beneficially Owns together with its Permitted Transferees who are Stockholders, together, Beneficially Own Affiliates less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 5.2 (subject to Section 6.1(f5.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, included or (B) within ninety (90) day days of any other Underwritten Offering pursuant to Section 6.3(e5.3(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 succession, the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.45.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At any time after Upon written notice from a Holder of Registrable Securities in the date manner set forth in Section 12(g) hereof requesting that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on effect the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number any or all of the Registrable Securities thatheld by such Holder, when taken together with which notice shall specify the number intended method or methods of disposition of such Registrable Securities requested Securities, the Company will use its best efforts to be registered effect (at the earliest practicable date) the registration under the Securities Act by of such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method or methods of disposition stated in such Demand which may 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 "Rule 415 Offering") if the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form)), except that:
(i) if, after the Primary EDS Ownership Reduction, upon receipt of 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 an Underwritten Offeringcompleted within 90 days of such notice (a "Transaction Blackout"), the Company shall not 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 (together with the 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) all other Registrable Securities which if, after the Primary EDS Ownership Reduction, while a registration request is pending pursuant to this Section 2(a), counsel for the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register determines in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration good faith that (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause require the disclosure of material, non-public material information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by confidential or (B) the Company of then is unable to comply with SEC requirements, the filing or effectiveness of Company shall not be required to effect a registration statement pursuant to this Section 2(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 a Demand Registration, the holders Company initially makes such good faith determination (such counsel shall make such determination promptly and shall give written notice of a majority such determination to the Holder of Registrable Securities held by the Requesting Stockholders requesting registration within 5 days of making such determination);
(iii) EDS' transferees, collectively, shall have the right to withdraw such Demand in accordance with exercise registration rights pursuant to this Section 6.4.2 an aggregate of five (5) times (it being acknowledged that EDS' registration rights pursuant to this Section 2 are independent of any rights it transfers to transferees); and
(fiv) The Company subsequent to the Secondary EDS Ownership Reduction, EDS shall not include any securities other than Registrable Securities in a Demand Registrationhave the right to exercise its registration rights pursuant to this Section 2 an aggregate of three (3) times (it being acknowledged that prior to the Secondary EDS Ownership Reduction, 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 there shall 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up no limit to the number of occasions on which EDS or any of its affiliates may exercise such rights).
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder of Registrable Securities pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not exercised for purposes of subsection 2(a)), (i) if it has not become effective, (ii) if, after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court 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 registration pursuant to this Section 2 (other than subsection (2)(a)(iii)) shall involve, in whole or 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 then contemplated by EDS. EDS may require that any such additional securities be included in such Demand Registration the offering proposed by EDS on the Stockholders, whichsame terms and conditions as the Registrable Securities that are included therein.
(e) After the Primary EDS Ownership Reduction, in the opinion event that, at any time after any Rule 415 Offering is declared effective, the general counsel of the underwriter can be sold without adversely affecting Company determines in good faith that the marketability sale of Registrable Securities in such Rule 415 Offering would require disclosure of material information that the offeringCompany has a bona fide business purpose for preserving as confidential or that the Company is unable to comply with SEC requirements, pro rata among Holders selling Registrable Securities in such Stockholders requesting Rule 415 Offering shall, upon written notice of such Demand Registration good faith determination, suspend sales of such Registrable Securities for a period beginning on the basis date of the number receipt of such securities held by notice and expiring on the earlier of (i) the date upon which such Stockholders material information is disclosed to the public or ceases to be material or the Company is able to comply with SEC requirements, as the case may be, and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities 45 days after the Company proposes to sell; and (iii) third, all other securities general counsel of the Company duly requested to be included in initially makes such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companygood faith determination.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Unigraphics Solutions Inc)
Demand Registration. (a) At any time commencing one year after the date Effective Date of the Public Offering, and expiring four years thereafter, the Holders of Registrable Securities representing more than 50% of such securities at that time outstanding shall have the right (which is in addition to 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 hundred 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 eighty (180) days after counsel for the date hereof Representative and Holders, in order to comply with the provisions of the Act, so as to permit a public offering and sale of their respective Registrable Securities for nine consecutive months (or such earlier longer period of time as permitted by the Act) by such Holders and any other Holders of any of the Registrable Securities 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 four 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 as to permit 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) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities that, when taken together with Specify the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested Holders intend to register by offer and sell and the Requesting Stockholders for disposition in accordance with minimum price at which the intended method of disposition stated in Holders intend to offer and sell such Demand which may be an Underwritten Offeringsecurities;
(ii) all other Registrable Securities which State the Company has been requested intention of the Holders to register pursuant to Section 6.1(b)offer such securities for sale;
(iii) Describe the intended method of distribution of such securities; and
(iiiiv) Contain an undertaking on the part of the Holders to provide all Class A Shares which such information and materials concerning the Company Holders and take all such action as may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary be reasonably required to permit the disposition (in accordance Company to comply with the intended methods thereof) all applicable requirements of the Registrable Securities Commission and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity obtain acceleration of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form effective date of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Companystatement.
(e) The In the event the Company shall not be obligated to effect receives from the Holders of any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least Registrable Securities representing more than 50% of such securities at that time outstanding, a request that the number of Company effect a registration on Form S-3 with respect to the Registrable Securities requested by and if Form S-3 is available for such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In additionoffering, 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 shall, as soon as practicable, effect such registration as would permit or facilitate the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred sale and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 distribution of the Registrable Securities included as are specified in such Demand Registrationthe request. If, All expenses incurred in connection with a Demand Registration, any managing underwriter registration requested pursuant to this Subsection (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registratione) 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 shall 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined borne by the Company. Registrations effected pursuant to this Subsection (e) shall not be counted as registrations pursuant to Sections 7.3 (a) and 7.3 (c).
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Representative's Warrant Agreement (Commerce Casualty Group Inc)
Demand Registration. (a) At any time after In the date event that is one hundred and eighty (180) following 180 days after the effective date hereof (of the Registration Statement any Holder or Holders desire to sell shares of Registrable Securities owned by such earlier date (i) as would permit Holder or Holders then upon 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of any Holder or Holders requesting that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or part of such Holder's or Holders' Registrable Securities and specifying the intended method of disposition thereof, but subject to the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities thatSecurities, when taken together and the Company shall file with the number of Registrable Securities requested Commission as promptly as practicable after sending such notice, and use its best efforts to be registered cause to become effective, a registration statement under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than registering the Registrable Amount (a “Demand Registration”) offering and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act sale of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;Holder or Holders; and
(ii) all other Registrable Securities which the Company has been requested to register pursuant by any other Holder thereof by written request given to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering 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), but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofmethod thereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
(b) A Demand shall specify: (i) ; provided, that the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of file a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause any registration request under this Section 2(a) (A) unless 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 aggregate requests by the Company Holder or Holders for such registration cover not less than an aggregate of 1,000,000 shares (adjusted for any stock splits, reverse stock splits or combination of shares) or (B) with respect to more than one such registration per calendar year; provided that a request may cover fewer than 1,000,000 shares (but not less than 500,000 shares) if the total number of shares of Registrable Securities then outstanding is less than 1,000,000. A request for registration under this Section 2(a) shall not be counted for purposes of the filing or effectiveness of foregoing limitation (i) unless a registration statement has become effective and has been kept continuously effective for a Demand Registrationthe period required under Section 4(b), (ii) if after it has become effective, use of such registration statement is suspended by any stop order, injunction or other order or requirement of the holders of a majority of Commission or other governmental agency or court, (iii) if no Registrable Securities held by are sold within the Requesting Stockholders shall have period during which the right to withdraw such Demand in accordance with registration statement has been kept continuously effective as required under Section 6.4.
(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 Registration4(b). IfA Holder may, in connection with a Demand Registrationrequest for registration under this Section 2(a), 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 specify 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 are to be sold pursuant theretoon a delayed or continuous basis, then in which case 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 file a Shelf Registration Statement with respect thereto; provided, that each of the following order of priorityconditions has been satisfied: (i) firstthe Company is eligible to file a registration statement on Form S-3, up to (ii) a period of six years has elapsed since the effective date of the Registration Statement and (iii) the total number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion outstanding constitutes 30% or less of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the total number of such securities held by 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 securities shares of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanyCommon Stock outstanding.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At any time from and after 180 days following the date that is one hundred Effective Date and eighty (180subject to Sections 2(c) days and 2(d) hereof, after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make receipt of a written request of from a Holder (the "INITIATING DEMAND HOLDER") requesting that the Company effect a registration (a “Demand”"DEMAND REGISTRATION") for registration under the Securities Act covering all or part of a number of the Registrable Securities thatheld by such Holder, when taken together with 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 Section 3 hereof, may elect (by written notice sent to the Company within twenty (20) days from the date of such Holder's receipt of the aforementioned Company's notice) to have all or part of such Holder's Registrable Securities included in such registration thereof pursuant to this Section 2, and such Holder shall specify in such notice the number of Registrable Securities requested 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 registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholdersdeclared effective, equals or is greater than the Registrable Amount a registration statement (a “Demand Registration”"DEMAND REGISTRATION STATEMENT") and thereupon the Company will, relating (subject to the terms Section 2(b) hereof) to all of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders such Holders ("PARTICIPATING DEMAND HOLDERS") 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 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securitiessale, but subject to Section 6.1(f); all to the extent necessary required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) , 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, Registration Statement is made.
(iib) If the intended method of disposition Initiating Demand Holder so requests that the offering be underwritten with a managing underwriter (which shall be selected in connection with the manner set forth in Section 12 below) and such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice managing underwriter of such Demand to all other Stockholders. Subject to Section 6.1(f), Registration advises 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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, writing that, in its opinion, the inclusion number of all of the securities, including securities of the Company that are not Registrable Securities, sought Securities to be registered included in connection with such Demand Registration would adversely affect 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 of thereof (the Registrable Securities sought to be sold pursuant thereto"MAXIMUM NUMBER OF SECURITIES"), then the Company shall include in such registration statement only such securities as Demand Registration 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 that the Participating Demand Holders have requested to be included in such Demand Registration by registered thereunder only to the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of extent the number of such securities held by Registrable Securities does not exceed the Maximum Number of Securities. The Company shall include 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 securities of the Company duly requested to be included Registrable Securities in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such a Demand Registration oreven 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, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting shall be allocated among all the Participating Demand Holders on a plurality pro rata basis, unless any of all 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) more than one (1) Demand Registration Statement under this Agreement in any 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).
(e) A Demand Registration requested pursuant to Section 2(a) hereof shall not be deemed to have been effected with respect to any Participating Demand Holder that is not able to register and sell at least 80% of the amount of Registrable Securities requested to be included on behalf of such Holder in such registration.
(f) A Participating Demand Holder may withdraw its request with respect to a Demand Registration at any time prior to the effective date of the Demand Registration Statement relating thereto by 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, unless such withdrawal was the result of a change in market conditions that would materially adversely effect the amount and/or price of the Registrable Securities to be included in the Demand Registration.
Appears in 1 contract
Demand Registration. (a) At any time From and after the earlier of the date that is one hundred and eighty (180) days calendar year after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day hereof, after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make 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 (a “Demand”) "Holder Notice"), the Company shall, as expeditiously as is possible, use its reasonable commercial efforts to effect the registration for registration sale under the Securities Act of a number all shares 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable SecuritiesHolders, but subject to Section 6.1(f); all to the extent necessary required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the such Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) ; PROVIDED, HOWEVER, that the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated required to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 (1201) days in registration of any Registrable Securities pursuant to this Section 2(a) except as otherwise expressly provided herein. If the aggregate, in any period managing underwriter of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-a proposed public information that offering shall advise 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 6.4.
(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, writing that, in its opinion, the inclusion of all distribution of the securities, including securities of the 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 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 in such Demand Registration the registration concurrently with the securities being registered by the Stockholders, which, in Company or such other registering security holders would materially and adversely affect the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number distribution of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company proposes to sell; and (iii) thirdor such registering security holders, all other securities of then the Company duly 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 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 statement, 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 basis day that is two calendar months after the termination of the number Registration Period relating to the Failed Registration by written notice sent to the Company by Holders of such other securities requested 50% of the Reduction Shares (a "Repurchase/Register Notice"), to be included or such other method determined by require the Company to elect (at the Company.
(g's option) Any investment bank(sto either register the Reduction Shares otherwise pursuant to this Section 2(a) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration the foregoing offer to sell or resulting sale is not an Underwritten Offeringthen lawful, any investment bank engaged in connection therewith, shall be selected to repurchase the Reduction Shares at the higher of (i) by Holdingsthe price per share for which Registrable Securities were actually sold in the Failed Registration, for so long as the Secondary Class B Condition is satisfied, and thereafter or (ii) the Market Price on the date the Repurchase/Register Notice is sent to the Company in compliance with this Agreement; PROVIDED, HOWEVER, that the Holders shall not be deemed hereby or thereby to have made any offer to sell to the Company that does not comply with applicable law and the Company shall not be entitled or deemed to be entitled to 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 occur at such time within three calendar months after the date that the Company receives the related Repurchase/Register Notice subject to the other provisions of this Section 2(a), and otherwise at such time and place as the Company may determine, and each of 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 Stockholder participating 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 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 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 soon as practicable after such fair market value has been determined as set forth in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number the definition of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationMarket Price set forth herein.
Appears in 1 contract
Sources: Registration Rights Agreement (Crown Northcorp Inc)
Demand Registration. (a) At any After the consummation of an IPO or at such time after prior to the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) consummation of an IPO as is permitted by waiver under Section 10.3 with respect to a given Shareholder, upon a Shareholder's written request specifying the IPO Underwriting Agreementintended manner of disposition (including the number of shares of Vail Equity to be sold) (a "Demand Notice"), any Stockholders that Vail will use its best efforts to prepare and file with the SEC, as expeditiously as possible, a Registration Statement on the date an available form for which Vail then qualifies (but not including by means of a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled shelf registration pursuant to make a written request of the Company (a “Demand”) for registration Rule 415 under the Securities Act Act), which legal counsel for Vail deems appropriate and which is available for the sale of a number Vail Equity to permit an underwritten public offering of Registrable Securities that, when taken together with some or all of the number shares of Registrable Securities requested to be registered under the Securities Act Vail Equity then held by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) Shareholder and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the cause such registration as promptly as practicable under the Securities Act of:
statement to become effective (i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such a "Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(bRegistration"); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: Registration will not be deemed to have occurred until it has become effective under the Securities Act (i) unless a Shareholder delivers a Demand Notice and subsequently withdraws the aggregate number of Registrable Securities requested to be registered Demand Notice, in which case such Demand Registration, (ii) the intended method of disposition in connection 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); provided, however, that if, after a Demand RegistrationRegistration has become effective, the offering of Vail Equity pursuant to the extent then known and (iii) the identity such Demand Registration is prohibited by any stop order, injunction or other order or requirement of the Requesting Stockholder SEC or other governmental agency or a court, such Demand Registration will be deemed not to have occurred (unless such prohibition on the sale of the Vail Equity is based on actions or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice omissions of such Demand to all other Stockholders. Subject to Section 6.1(f)Shareholder, the Company shall include in the which case such Demand Registration covered 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 such Demand all Registrable Securities 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 given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(bVail).
(c) For so long as Vail shall only be obligated to effect one Demand Registration per Shareholder in any twelve month period under this Section 5.1; provided, however, that Vail will not be required to register the Secondary Class B Condition is satisfied, Holdings shall be entitled Vail Equity pursuant to an unlimited number of a Demand Registrations until Notice under this Section 5.1 if at such time as (i) the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own shares of Vail Equity which a Shareholder is requesting to be registered pursuant to this Section 5.1 constitute less than a Registrable Amount. After 6.0% (or, if less, all of the Secondary Class B Condition ceases shares of Vail Equity owned by such Shareholder) of the outstanding Vail Securities so requested to be satisfied, each Stockholder shall be entitled to an unlimited number registered or (ii) such Demand Notice is given within six (6) months after the effective date of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountany other registration of any Vail Securities under the Securities Act.
(d) Demand Registrations The managing underwriter will be selected by the Shareholder requesting registration pursuant to this Section 5.1 (the "Requesting Shareholder"); provided, however, that such underwriter shall be on subject to the approval of Vail, which approval shall not be unreasonably withheld. In the event there is one or more co-managers, the first such registration form co-manager shall be selected by Vail, provided that such co-manager shall be subject to the approval of the SEC for Requesting Shareholder, which the Company is eligible as approval shall not be unreasonably withheld or delayed, and all other co- managers will be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the CompanyShareholder.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 both the Shareholder not requesting the Demand Registration is not an Underwritten Offering(the "Non- Requesting Shareholder") and Vail may elect to include additional shares of Vail Securities in such offering on the same terms and conditions as the Vail Equity to be sold by the Requesting Shareholder; provided, a nationally recognized investment bank engaged in connection with such Demand Registrationhowever, that if the managing underwriter(s) advises the CompanyRequesting Shareholder, in writing, the Non- Requesting Shareholder and Vail that, in its opinionjudgment, the inclusion number of all of the securities, including securities of the Company that are not Registrable Securities, sought shares proposed 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 included in such registration statement only such securities as offering exceeds the Company is advised by such underwriter or investment bank largest number of Vail Securities which can be sold without such having an adverse effect on such offering, including the price at which such securities can be sold (the "Marketable Number"), then the total number of shares to be included in such offering shall be limited as follows and in the following order of priorityfollows: (i) first, all the shares of Vail Equity that the Requesting Shareholder and the Non-Requesting Shareholder propose to sell up to the Marketable Number, allocated pro rata between the Requesting Shareholder and the Non-Requesting Shareholder on the basis of the relative number of Registrable Vail Securities requested that the Requesting Shareholder and the Non-Requesting Shareholder have proposed to be included in such Demand Registration by the Stockholdersregistration, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities all the Company shares of Vail Securities that Vail proposes to sell; , which does not exceed the difference, if any, between the Marketable Number 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 that number of such other securities requested shares which the Requesting Shareholder and the Non-Requesting Shareholder have included pursuant to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected clauses (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationabove.
Appears in 1 contract
Sources: Stock Purchase Agreement (New Ralcorp Holdings Inc)
Demand Registration. (a) At any time after Upon the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of one or more of the DLJ Entities or, with the consent of DLJ Merchant Banking, Inc., their Permitted Transferees (each such DLJ Entity and Permitted Transferee, a "Selling Shareholder" and collectively, the "Selling Shareholders") requesting that the Company (a “Demand”) for effect the registration under the Securities Act of a number such Selling Shareholder's Registrable Stock, and specifying the intended method of Registrable Securities thatdisposition thereof, when taken together with the number Company will promptly give written notice of Registrable Securities such requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount registration (a “"Demand Registration”") to all Shareholders, and thereupon the Company will, subject to the terms of this Agreement, will use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which Stock that the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with Selling Shareholders, then held by the intended method of disposition stated in such Demand which may be an Underwritten Offering;Selling Shareholders; and
(ii) all other Registrable Securities which Stock that any other Institutional Shareholder or any of their Permitted Transferees and, subject to Sections 3.5 and 5.2, any Management Shareholder (all such Shareholders, together with the Selling Shareholder, the "Holders") has requested the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which by written request received by the Company may elect to register in connection with any offering within 15 days after the receipt by such Holders of Registrable Securitiessuch written notice given by the Company, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, Stock so to be registered; provided that subject to Section 5.1(e) hereof, the Company shall not be obligated to effect more than five Demand Registrations by DLJ Entities pursuant to this Section 5.1 and provided further that any Registrable Stock that is a Vested Warrant or a Vested Option shall have been exercised prior to its sale pursuant to any such registration. without liability to any of the other Holders, by providing a written notice to the Company revoking such request, in which case such request, so registeredrevoked, shall not be considered a Demand Registration.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition The Company will pay all Registration Expenses in connection with such any Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as A registration requested pursuant to this Section 5.1 shall not be deemed to have been effected unless the Secondary Class B Condition registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 consecutive days (or such shorter period in which all Registrable Stock of the Holders included in such registration has actually been sold thereunder); provided that if after any registration statement requested pursuant to this Section 5.1 becomes effective (i) such registration statement is satisfiedinterfered with by any stop order, Holdings injunction or other order or requirement of the SEC or other governmental agency or court due to the actions or omissions to act of the Company and (ii) less than 75% of the Registrable Stock included in such registration has been sold thereunder, such registration statement shall be entitled to an unlimited number at the sole expense of the Company and shall not be considered a Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable AmountRegistration.
(d) If a Demand Registrations Registration involves a Public Offering and the managing underwriter shall advise the Company and the Selling Shareholder that, in its view, (i) the number of shares of Common Stock requested to be on included in such registration form of the SEC for (including Common Stock which the Company proposes to be included which is eligible as shall not Registrable Stock) exceeds the largest number of Shares which can be selected sold without having an adverse effect on such offering, including the price at which such Shares can be sold or (ii) the inclusion of some or all of the Shares owned by the Requesting StockholdersOther Shareholders (including any particular category of Other Shareholders such as the Management Shareholders), includingwould have an adverse effect on such offering, including the price at which such Shares can be sold (the "Underwriters' Limitations"), the Company will include in such registration, in the priority listed below, subject to the extent permissibleUnderwriters' Limitations:
(A) Registrable Stock requested to be included in such registration); and
(B) second, an automatically effective registration statement or an existing effective registration statement filed any Common Stock proposed to be registered by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that If Registrable Stock representing at least 50% of the number of Registrable Securities Shares requested by such Stockholders to be registered by a Selling Shareholder is not included in any Demand Registration, then such Demand Registration were includedShareholders may request that the Company effect an additional registration under the Securities Act of all or part of such Shareholders' Registrable Stock in accordance with the provisions of this Section 5.1, and (Bx) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 pay the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 Expenses 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 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 additional 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company proposes to sell; and (iiiy) third, all other securities of the Company duly requested to such additional registration shall not be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) considered a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At Upon written notice to the Issuer from one or more Holders at any time after during such periods as are provided for in the date Lock-Up Agreement or as are agreed by the Issuer (the “Demand Request”) requesting that is one hundred and eighty (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 Commission a registration statement with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to be declared effective under the 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(i) 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 registered pursuant to the Demand Registration is equal to or more than 1,000,000 shares;
(iii) the 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 required to effect any Demand Registration hereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(or such earlier date b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to this Section 2.01 shall not be deemed to have been 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, (i) as would permit if such Demand Registration has not become effective under the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof 1933 Act or (ii) as is permitted by waiver if such Demand Registration, after it became effective under the IPO Underwriting Agreement)1933 Act, was not maintained effective under the 1933 Act (other than as a result of any Stockholders that stop order, injunction or other order or requirement of the Commission or other government agency or court solely on the date account of a Demand (as hereinafter defined) is made constitute Demand Stockholders (material misrepresentation or omission of a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”Holder) for registration under at least 30 days (or such shorter period ending when all the Securities Act of a number of Registrable Securities thatcovered thereby have been disposed of pursuant thereto) and, when taken together with as a result thereof, the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition cannot be distributed in accordance with the intended method plan of disposition stated distribution set forth in such the related registration statement. So long as a Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which Request is made by the Company has been requested Holders within the periods referred to register pursuant to in Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f2.01(a), the Company Holders shall include in not lose their right to their Demand Registration under Section 2.01 if the Demand Registration covered by related to such Demand all Registrable Securities with respect to which Request is delayed or not effected in 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 given. Such written request shall comply with the requirements of a Demand as circumstances set forth in this Section 6.1(bclause (b).
(c) For so long as The Issuer shall have the Secondary Class B Condition is satisfied, Holdings shall be entitled right to an unlimited number cause the registration of Demand Registrations until such time as additional equity securities for sale for the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form account of the SEC Issuer (but not for which the Company is eligible as shall be selected by account of stockholders other than Holders) in the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if such Stockholders Holders are advised in writing (with a copy to the Issuer) by the lead or 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 Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(eregistration by each). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.; and
(fii) The Company shall not include any securities other than Registrable Securities in a Demand Registrationsecond, 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 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 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 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 Issuer 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, the Issuer shall provide a written notice to each Holder, advising such Holder of its right to include any or all of the Registrable Securities held by such Holder for sale pursuant to the Demand Registration and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the Demand Registration. Any Holder may, within 7 days of delivery to such Holder of a notice pursuant to this Section 2.01(d), elect to so include Registrable Securities in the Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect written notice to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as effect to the Secondary Class B Condition is satisfied, and thereafter (ii) by Issuer specifying the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a 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 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 Demand Registration constituting a plurality registration statement such number of Registrable Securities as the Holders so desire but not to 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 (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 included 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 2.01(e) and prior to the effective date of the registration statement filed in connection with such registration, the Issuer shall determine for any reason not to register the securities to be offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to all such Holders and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration. No registration effected under this Section 2.01(e) shall relieve the Issuer of its obligations to effect any Demand RegistrationRegistration 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, 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 the Subsequent Period shall be extended by the number of days equal to the period of any Disadvantageous Condition Delay occurring during the Subsequent Period.
Appears in 1 contract
Sources: Registration Rights Agreement (Nptest Holding Corp)
Demand Registration. (a) At any time after If the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) Issuer shall be entitled to make receive a written request by the DLJ Entities, Chase, Summit on behalf of the Company Summit-Investors or the Wind▇ ▇▇▇▇ ▇▇▇estors (as provided in Section 5.13) (any such requesting Person, a “Demand”"SELLING SHAREHOLDER") for that the Issuer effect the registration under the Securities Act of all or a number portion of Registrable Securities thatsuch Selling Shareholder's shares of Common Stock, when taken together with and specifying the number intended method of Registrable Securities disposition thereof, following the earlier to occur of (i) October 5, 1999 or (ii) an Initial Public Offering, then the Issuer shall promptly give written notice of such requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount registration (a “"DEMAND REGISTRATION") at least 30 days prior to the anticipated filing date of the registration statement relating to such Demand Registration”) Registration to the other Shareholders and thereupon the Company will, subject to the terms of this Agreement, will use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(iA) the Registrable Securities which the Company Issuer has been so requested to register by the Requesting Stockholders for disposition Selling Shareholders, then held by the Selling Shareholders; and (B) subject to the cut back provisions set forth in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) 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 Company has been requested request by the Selling Shareholders relates which any other Shareholder entitled to register request the Issuer to effect an Incidental Registration (as such term is defined in Section 5.2) pursuant to Section 6.1(b); and
5.2 (iiiall such Shareholders, together with the Selling Shareholders, the "HOLDERS") all Class A Shares which has requested the Company may elect Issuer to register in connection with any offering by written request received by the Issuer within 15 days after the receipt by such Holders of Registrable Securitiessuch written notice given by the Issuer, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
; provided that, subject to Section 5.1(c) hereof, (b) A Demand shall specify: (iI) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any more than three Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights 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 6.2 5.1, and (subject II) in addition to Section 6.1(f)) and provided that at least 50% of the foregoing rights, following the Short-Form Date, the number of Registrable Securities 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 by such Stockholders to be included in such Demand Registration were includedequal at least (x) if such Demand Registration would constitute an Initial Public Offering, $50,000,000, or (By) within ninety (90) day of in any other Underwritten Offering pursuant to Section 6.3(e)Public Offering, $20,000,000. In addition, no event will the Company shall Issuer be entitled required 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 effect more than one hundred and twenty Demand Registration within any 6 month period.
(120b) days The Issuer will pay all Registration Expenses in the aggregate, in connection with any period of twelve Demand Registration.
(12c) consecutive monthsA registration requested pursuant to this Section 5.1 shall not be deemed to have been effected (i) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of unless the registration statement relating to thereto (A) has become effective under the Securities Act and (B) has remained effective for a period of at least 180 days (or 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 shorter period in which all Registrable Securities of the filing or effectiveness of a Holders included in such registration have actually been sold thereunder); provided that if after any registration statement for a Demand Registrationrequested pursuant to this Section 5.1 becomes effective (x) such registration statement is interfered with by any stop order, injunction or other order or requirement of 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 6.4.
SEC or other governmental agency or court and (fy) The Company shall not include any securities other less than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority 75% of the Registrable Securities included in such Demand Registration. Ifregistration statement has been sold thereunder, in connection with such registration statement shall not be considered a Demand Registration, any 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 (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises shall advise the Company, in writing, Issuer and the Selling Shareholders that, in its opinionview, (i) the inclusion number of all shares of Common Stock or Warrants requested to be included in such registration (including Common Stock or Warrants which the securities, including securities of the Company that Issuer proposes to be included which are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect ) or (ii) the marketability inclusion of some or all of the Registrable Securities sought to be sold pursuant theretoshares of Common Stock or Warrants owned by the Holders, then in any such case, exceeds the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank largest number of shares which can be sold without such having an adverse effect as follows and 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 following order of priority: (i) firstpriority 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 Demand Registration registration by any other Holder (allocated, if necessary for the Stockholders, which, in offering not to exceed the opinion of the underwriter can be sold without adversely affecting the marketability of the offeringMaximum Offering Size, pro rata among such Stockholders requesting such Demand Registration other Holders on the basis of the relative number of such securities held by 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 securities of the Company duly Registrable Securities so requested to be included in such registration statementregistration); and (C) third, pro rata on the basis of the number of such other securities requested any Common Stock proposed to be included or such other method determined registered by the CompanyIssuer.
(ge) Any investment bank(s) that will serve as an underwriter with respect Upon written notice to such Demand Registration oreach Selling Shareholder, if such Demand Registration is the Issuer may postpone effecting a registration pursuant to this Section 5.1 on one occasion during any period of six consecutive months for a reasonable time specified in the notice but not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected exceeding 90 days (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.which
Appears in 1 contract
Sources: Investors' Agreement (Doane Pet Care Enterprises Inc)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (On or such earlier date (i) as would permit prior to each Filing Date, the Company to cause any filings required hereunder shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) hereunder shall be entitled on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders or to make a written request any disclosure contained therein not misleading) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities thatSelling Stockholder” section attached hereto as Annex B; provided, when taken together with the number of Registrable Securities requested however, that no Holder shall be required to be registered under the Securities Act by named as an “underwriter” without such Requesting StockholderHolder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject express prior written consent. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to effect the registration as promptly as practicable cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall notify the Holders via e-mail of the effectiveness of a Registration Statement as promptly as practicable, and shall, if requested, provide the Holders with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its reasonable best efforts to file an amendment or amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); and subject to the provisions of Section 2(d) with respect to payment of liquidated damages with respect to filing on Form S-3 or other appropriate form; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission to maximize the number of Registrable Securities to be registered), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) the Registrable Securities which First, the Company has been so requested shall reduce or eliminate any securities to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;included other than Registrable Securities; and
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandSecond, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f)reduce Registrable Securities represented by Warrant Shares (applied, 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall case that some Warrant Shares may be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own 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, includingregistered, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by Holders on a pro rata basis based on the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the total number of Registrable Securities requested unregistered Warrant Shares held by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(eHolders). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by reduction hereunder, the Company of shall give the filing or effectiveness of a registration statement for a Demand Registration, Holder at least five (5) Trading Days’ prior written notice along with the holders of a majority of Registrable Securities held by calculations as to such ▇▇▇▇▇▇’s allotment. In the Requesting Stockholders shall have event the right to withdraw such Demand Company amends the Initial Registration Statement in accordance with Section 6.4.
(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 registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant theretoforegoing, then the Company shall include in such registration statement only such securities use its reasonable best efforts to file with the Commission, as promptly thereafter as allowed by Commission or SEC Guidance provided to the Company is advised by or to registrants of securities in general, one or more registration statements on Form S-3 or such underwriter or investment bank can be sold without such adverse effect other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as follows and in the following order of priorityamended.
(d) If: (i) firstthe Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Lead Investors the opportunity to review and comment on the same as required by Section 3(a) herein, up the Company shall be deemed to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion have not satisfied this clause as of the underwriter can be sold without adversely affecting the marketability of the offeringFiling Date (i)), pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company proposes fails to sell; and file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified in writing by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, (iii) third, a Registration Statement registering for resale all other securities of the Company duly requested to be included in such registration statement, pro rata on Registrable Securities is not declared effective by the basis Commission by the Effectiveness Date of the number Initial Registration Statement or (iv) after the effective date of a Registration Statement, such other securities requested Registration Statement ceases for any reason to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve remain continuously effective as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationRegistration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowed Delay), for more than fifteen (15) consecutive calendar days or more than an aggregate of twenty (20) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iii), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iv) the date on which such fifteen (15) or twenty (20) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 12.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven Trading Days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no liquidated damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Holder and the Company’s transfer agent, if any, (ii) to a Holder with respect to an Event caused by any action of such Holder or failure of such Holder to take any action that such ▇▇▇▇▇▇ is required to take hereunder, or (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities because of possession of material non-public information.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company 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.
(f) Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. (a) At any time after the date that first anniversary of the consummation of the Merger, the Holder(s) of Shares representing a "Majority" (as hereinafter defined), of such securities shall have the right (which right is one hundred and eighty in addition to the Piggyback Registration rights provided for under Section 1 hereof), exercisable by written notice to the Company, which may be given ten (18010) days after months from the date hereof (or such earlier date (i) as would permit a "Demand Registration Request"), to have the Company to cause any filings required hereunder to be filed on prepare and file with the 180th day after Commission, at the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request sole expense of the Company (a “Demand”) for registration under the Securities Act except as hereinafter provided), in respect of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested up to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) Shares held by the intended method of disposition in connection with such Demand Registration, to Holders having an aggregate value based upon the extent then known average bid and (iii) ask price for the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) trading days after receipt proceeding the effective date of the registration statement equal to $2,500,000 (the "Demand Shares"), a DemandRegistration Statement so as to permit a public offering and sale of the Demand Shares; provided however, that the Company is then eligible to register the Demand Shares on Form S-3 (or successor form) and, if the Holder intends to distribute the Demand Shares by means of an underwriting, then the Holder shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), so notify 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 ten (10) days after the Company’s notice required by this paragraph has been givenRequest. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as The underwriter shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, Holder and shall be reasonably acceptable to the Company. The Company and other stockholders may, at the Company's sole discretion, have other shares of the Company's common stock included in such Registration Statement, provided that in the event that an underwriter requires a limitation in the total number of shares in the offering for marketing purposes, then only the shares of the Company proposed to be offered by the Company and such other stockholders shall be cutback, and the Holder's Demand Shares shall not be subject to such cut-back. For purposes of this Agreement, the term "Majority" in reference to the Holders shall mean in excess of sixty-five percent (65%) of the then outstanding Shares held by Holders that have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
(eb) The Company shall not be obligated will use reasonable efforts to effect any file the Registration Statement as expeditiously as reasonably possible, but in no event later than 60 days following receipt of such Demand Registration Request; provided that nothing herein shall require the Company to undergo an audit, other than in the ordinary course of business; and provided further that no Registration Statement shall become effective before the one (A1) within ninety (90) days year anniversary of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (the consummation of the Merger. In connection with any underwritten Demand Registration Request and subject to Section 6.1(f)3(c) hereof, the Company will enter into any underwriting agreement reasonably necessary to effect such offering, provided such underwriting agreement (i) is with an underwriter selected by the Holder and provided that reasonably acceptable to the Company and (ii) contains customary underwriting provisions for offerings by selling stockholders.
(c) Notwithstanding any provision of this Section 2 to the contrary, if, at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such time a Demand Registration were includedRequest is given to the Company under Section 2 hereof, (B) within ninety (90) day the Company is negotiating a merger, consolidation, acquisition or sale of any other Underwritten Offering pursuant all or substantially all of its assets or a similar transaction and if in the opinion of counsel to Section 6.3(e). In additionthe Company, the Registration Statement would be required to include information concerning such transactions or the parties thereto which is not reasonably available at the time, the Company shall promptly inform the holders of the Demand Shares by written notice of such circumstances (a "Postponement Notice") and, at the Company's election to be set forth in the Postponement Notice, the filing of the Registration Statement may be postponed for one (and not more than one) period not to exceed 180 days from the date on which the Demand Registration Request is given to the Company under this Section 2 (notwithstanding any provisions herein to the contrary); provided that in the event of such postponement, the Holder may withdraw the Demand Registration Request during the 90 day period following the date on which the Notice of Postponement was given by the Company, and thereafter the Holder will continue to be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating Request pursuant to this Section 2 until 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 held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 6.4.
(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 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 time 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanyHolder no longer possesses any Shares.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At For a period of 270 days (plus any time additional days during which a registration has been postponed pursuant to Section 2.1(f) hereof) from and after the date that is one hundred (1) year from the date of this Agreement, the Holder shall be entitled to have the Company effect one (1) demand registration on Form S-3 (to the extent available to the Company, or any applicable substitute, replacement or successor form that may be adopted by the SEC) of the Registrable Securities then owned of record and eighty beneficially by such Holder. A request for such demand registration (180a "Registration Request") must be made in writing by the Holder.
(b) The Company shall use its best efforts to cause the Registrable Securities specified in the Registration Request to be registered as soon as reasonably practicable so as to permit the sale thereof and, in connection therewith, shall, within thirty (30) days after the date hereof (or such earlier date (i) as would permit Holder provides the Company to cause any filings required hereunder to be filed on with such notice, prepare and file a registration statement with the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration 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 deemed under the Securities Act to be necessary by the Company.
(d) In connection with the preparation of a number of Registrable Securities thatthe registration statement, when taken together with the Holder shall:
(i) Specify the number of Registrable Securities requested intended to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) offered and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register sold by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten OfferingHolder;
(ii) all other Registrable Securities which Express the Company has been requested Holder's intention to register pursuant to Section 6.1(b)offer or cause the offering of such shares for distribution;
(iii) Describe the nature or method of the proposed offer and sale thereof by the Holder; and
(iiiiv) Undertake to provide all Class A Shares which the Company such information and materials and take all such action as may elect to register be required in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary order to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, Company to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the all applicable requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which and to obtain any desired acceleration of the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective date of such registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Companystatement.
(e) The Notwithstanding the foregoing, if the Company shall not be obligated furnish to effect any Demand Registration (A) within ninety (90) days of the Holder a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% certificate signed by a duly authorized officer of the number Company stating that in the good faith judgment of Registrable Securities requested by the Board of Directors of the Company it would be seriously detrimental to the Company for such Stockholders registration statement to be included in filed on or before the date such Demand Registration were includedfiling would be required, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, then the Company shall be entitled to postpone (upon written notice the filing of the registration statement for up to all Stockholders) for a reasonable period of time not to exceed ninety (90) days days; provided, that no period of postponement shall be counted in succession tolling the filing 270-day period referred to in Section 2.1(a) above.
(f) If a registration has become effective but is withdrawn before completion of the offering contemplated thereby because of adverse business developments at the Company that were not known to the Holder when it requested that the Company initiate such registration proceedings, or which developments came into existence subsequent to such request, such registration shall not count as the demand registration referred to in the first sentence of this Section 2.1.
(g) If a registration is filed on behalf of the Holder and such registration is withdrawn at the request of the Holder for any reason other than adverse business developments at the Company that were not known to the Holder, such registration shall count as the demand registration referred to in the first sentence of this Section 2.1.
(h) The Company shall not cause the registration under the Securities Act of any other shares of Common Stock to become effective (other than the registration of an employee stock plan, or registration in connection with any Rule 145 or similar transaction) during the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4requested hereunder.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Electronic Game Card Inc)
Demand Registration. (a) At any time after following the date that is one hundred Closing Date and eighty (180) days after so many times as may be required for the date hereof (or such earlier date (i) as would permit disposition of all Registrable Securities, each of TDR and the Initiating Holders may give a written request to the Company to cause any filings required hereunder to be filed on effect the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number all or any portion of such Holder’s Registrable Securities thatSecurities, when taken together with which written request shall specify the number of Registrable Securities requested to be registered under and the Securities Act by intended method of disposition thereof (each such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (registration shall be referred to herein as a “Demand Registration”) and thereupon the Company will); provided that, subject to Section 2.1(d), the terms of this 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 such shorter period as the Company may determine in its sole discretion) pursuant to which the Holders were permitted to register the offer and sale under the Securities Act, and 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 best efforts to effect effect, as soon as practicable, the registration as promptly as practicable under the Securities Act of:
(i) the all Registrable Securities for which the Company any Holder has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offeringregistration under this Section 2.1;
(ii) all other Registrable Securities which held by any other Holder specified in a written request received by the Company has been requested to register pursuant to Section 6.1(b)within five (5) days after written notice regarding such registration from the Company is delivered; and
(iii) all Class A Shares which any Common Stock to be offered or sold by the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f)Company; all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, 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) A At any time prior to the effective date of the Registration Statement relating to such Demand shall specify: (i) Registration, any requesting Holder may, upon notice to the aggregate Company, revoke their request in whole or in part with respect to the number of shares of Registrable Securities requested to be registered included 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 Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b)Statement.
(c) For so long as the Secondary Class B Condition is satisfied, Holdings The Company shall be entitled to an unlimited number liable for and pay all Registration Expenses in connection with any Demand Registration, regardless of whether such Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable AmountRegistration becomes effective.
(d) A Demand Registrations Registration shall not be on 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 Holders included in such registration form have actually been sold thereunder) or (y) with respect to a Shelf Registration, until the date set forth in Section 2.5(a)(ii); provided that such Registration Statement shall not be considered a Demand Registration if, after such Registration Statement becomes effective, (1) such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC for which or other governmental agency or court and (2) less than 75% of the Company Registrable Securities included in such Registration Statement have been sold thereunder; or
(ii) if the Maximum Offering Size is eligible as shall reduced in accordance with Section 2.1(e) such that less than 66.67% of the Registrable Securities of the Holders sought to be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective included in such registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Companyare included.
(e) The Company shall not be obligated to effect include in any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided or Shelf Registration any securities that at least 50% are not Registrable Securities without the prior written consent of the selling Holders. If a Demand Registration involves a Public Offering and the lead managing underwriter advises the Company and the selling Holders that, in its view, the number of shares of Registrable Securities requested by such Stockholders to be included in such Demand Registration were includedregistration (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 (B) within ninety (90) day of any other Underwritten the “Maximum Offering pursuant to Section 6.3(eSize”). In addition, the Company shall include in such registration, up to the Maximum Offering Size, first, all Registrable Securities requested to be entitled 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 (upon written notice to all Stockholdersi) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of a Registration Statement for a Demand Registration or Shelf Registration or (ii) the registration statement relating to commencement of a Shelf Public Offering if the Board of Directors of the Company determines in its reasonable good faith judgment that such Demand Registration, Shelf Registration would cause 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, non-public material information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by ; or (iii) renders the Company unable to comply with requirements under the Securities Act or Exchange Act; provided, that in such event TDR or the Initiating Holders, as applicable, shall be entitled to withdraw such request and, if such request for a Demand Registration is withdrawn, such Demand Registration shall not count as one of the filing or effectiveness of a permitted Demand Registrations hereunder and the Company shall pay all registration statement for expenses in connection with such registration. The Company may delay a Demand Registration, the holders Shelf Registration or Shelf Public Offering hereunder only twice in any period of a majority of Registrable Securities held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 6.4twelve (12) consecutive months.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit The Stockholder(s) may request that the Company effect the registration of all or part of the Registrable Securities owned by the Stockholder(s) by delivering a written notice to cause the Company signed by the requesting Stockholder(s) requesting such registration and describing the intended manner and timing of the sale of such Registrable Securities in reasonable detail: provided that no Stockholder may make such a request if its Registrable Securities are then included in the Shelf Registration, and provided, further, that the Stockholder(s) may not make more than two (2) such requests in the aggregate and no such request may be made within nine (9) months of any filings required hereunder to be filed on the 180th day after the date hereof or other request.
(ii) as is permitted by waiver under Upon receipt of any request pursuant to Section 4(a)(i) hereof, the IPO Underwriting Agreement), any Stockholders that on Company will notify each Stockholder who did not sign the date a Demand (as hereinafter definedrequest described in Section 4(a)(i) is made constitute Demand Stockholders (a “Requesting Stockholder”) hereof and each such other Stockholder shall be entitled to make a join in the request by providing written request of notice thereof to the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s delivery of such notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(eiii) 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 event no later than seventy-five (75) days 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 (y) subject to the second sentence of Section 5(b) hereof and clauses (2) and (3) of the last 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.
(v) The Company shall not be obligated to effect and any Other Holder may include securities in the Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights effected pursuant to this Section 6.2 (subject 4(a); provided, the Stockholder(s) shall have priority sale rights over the Company and such Other Holders with respect to Section 6.1(f)) and provided that at least 50% of the number of all Registrable Securities requested by such Stockholders them to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Internet Commerce Corp)
Demand Registration. (a) At any time On and after the date end of the Earn Out Period, the Stockholders’ Representative may in his sole and absolute discretion request in a written notice that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date file a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration statement under the Securities Act (or a similar document pursuant to any other statute then in effect corresponding to the Securities Act) covering the registration of any or all Registrable Stock held by the Stockholders; provided, that there must be included in such registration Registrable Stock having a number 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 Shareholders participating in the registration (the “ Registration Threshold ”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or such 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 ($5,000,000), if the Company is not eligible to register the sale or other disposition of Registrable Securities thaton Form S-3 (or a successor form). Following receipt of any notice under this Section 5.1, when taken together with the number of Registrable Securities requested Company shall use its reasonable efforts to cause to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholdersall Registrable Stock that the Stockholders have requested be registered in a manner of disposition reasonably acceptable to the Company, equals including but not limited to, an offering on a delayed or is greater than continuous basis pursuant to Rule 415 (or any successor rule) under the Securities Act.
(b) If the Company intends to have the Registrable Amount (a “Demand Registration”) and thereupon Stock distributed by means of an underwritten offering the Company will, subject Stockholders shall enter into an underwriting agreement in customary form with the underwriter or underwriters. If any Stockholder who intends to sell Registrable Securities in the offering disapproves of the terms of this Agreementthe underwriting, use such Stockholder may elect to withdraw all its reasonable best efforts to effect Registrable Stock from the registration as promptly as practicable under by written notice to the Securities Act of:Company and the managing underwriter. The underwriters shall be selected by the Company in its sole discretion.
(c) Notwithstanding any provision of this Agreement to the contrary,
(i) the Registrable Securities 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 for the account of the Company or on behalf of the selling stockholders under any other registration rights agreement which the Company has Stockholders have been so requested entitled to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offeringjoin pursuant to Section 5.2;
(ii) all 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, disposition, strategic alliance or financing transaction or other Registrable Securities potential material event involving the Company or (B) to suspend the registration rights set forth herein, the Company may (1) postpone the filing of any registration pursuant to this Section 5.1 and (2) suspend the rights of any Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that such periods of postponement and suspension may not exceed 120 days in the aggregate during any period of 12 consecutive months; and each Stockholder agrees in consideration of the 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 safe 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 shall extend the period during which such registration statement shall be maintained effective as provided in Section 5.3(a) by the number of days by which the Company has been requested to register pursuant to Section 6.1(b)suspends such registration statement; and
(iii) all Class A Shares which the Company may elect shall not be required to register effect a registration pursuant to this Section 5.1 more than one time in any twelve-month period and shall not be obligated to cause any audit to be undertaken in connection with any offering of Registrable Securities, but subject such registration that the Company is not otherwise required to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition undertake at that time in connection with such Demand Registration, to its obligations under the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandSecurities Act, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), Exchange Act and 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders rules and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountregulations thereunder.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 pay for more than one hundred and twenty (120) days in the aggregatethree registrations pursuant to this Section 5.1; provided, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 requested pursuant to withdraw such Demand in accordance with this Section 6.4.
(f) The Company 5.1 shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent be deemed to have been effected for purposes 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 Registrationthis Section 5.1(d) 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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: unless (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration it has been declared effective by the StockholdersCommission, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) secondit has remained effective for the period set forth in Section 5.3(a), securities the Company proposes to sell; and (iii) thirdthe offering of Registrable Stock pursuant to such registration is not subject to any stop order, all injunction or other securities order or requirement of the Company duly requested to be included in Commission (other than any such registration statementstop order, pro rata on the basis injunction, or other requirement of the number Commission prompted by any act or omission of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number holders of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationStock).
Appears in 1 contract
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) HEI shall have the right, on not more than four occasions in the aggregate, and no more frequently than once during any six-month period, and (ii) the Minority Stockholders as would permit a group shall have the right (though such right need not be jointly exercised by the Minority Stockholders), on not more than two occasions in the aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of 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 cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver register for offer and sale under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders Securities Act (a “Requesting Stockholder”"Demand") all or a portion of the Registrable Securities held by such Stockholders, subject to the restrictions set forth herein; provided that no Stockholders shall be entitled to make a written request 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) hereof prior to exercising any Demand as a Minority Stockholder under (ii) hereof. As promptly as practicable after the Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a “Demand”) "Demand Notice"), a copy of which shall have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for registration offer and sale under the Securities Act of a number of Registrable Securities thatSecurities, when taken together subject to Section 4.1(b), the Company shall (i) use all reasonable efforts to file as promptly as reasonably practicable with the number Commission a Registration Statement relating to the offer and sale of Registrable the Applicable Securities requested 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, (ii) after the filing of an initial version of the Registration Statement, use reasonable efforts to cause such Registration Statement to be registered declared effective under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under after the date of filing 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 Act of:
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 Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method Effective Time of disposition stated in such Demand which may be an Underwritten Offering;
Registration Statement and (ii) such time as all other Registrable Securities which of such securities have been disposed of by the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredselling securityholders.
(b) A Demand The Company shall specify: have the right to postpone (ior, if necessary or advisable, withdraw) the aggregate number of Registrable Securities requested to be registered in such Demand Registrationfiling, (ii) or delay the intended method of disposition in connection with such Demand Registrationeffectiveness, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandRegistration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to not disclose in the Registration Statement a planned or proposed financing, acquisition or other corporate transaction or other material information, and the Company shall give written notice have determined in good faith that such disclosure is not in the best interests of the Company and its stockholders; provided that no one such postponement shall exceed 90 days in any six-month period and all such postponements shall not exceed 180 days in the aggregate. The Company shall advise the Demanding Stockholder of any such determination as promptly as practicable after such determination.
(c) In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities subject to a Demand to all other Stockholders. Subject to Section 6.1(f)exceeds the number which can be sold in such offering, the Company shall include in such Registration the Demand Registration covered by number of Applicable Securities that, in the opinion of such Demand all Registrable Securities with respect to which managing underwriter or underwriters, can be sold in such offering (provided that, in 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 given. Such written request shall comply with the requirements event of a Demand as set forth joint Demand, the Applicable Securities included shall be allocated pro rata among the Demanding Stockholders on the basis of the relative number of Applicable Securities each such Demanding Stockholder has requested to be included in this Section 6.1(bsuch Registration).
(cd) For so long as 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 Secondary Class B Condition is satisfiedaccount of another Person, Holdings shall be entitled subject to the following sentence. In connection with an unlimited underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Demand Registrations until such time as Applicable Securities requested by the Stockholders and their Permitted Transferees who are StockholdersDemanding Stockholder, togethertogether with other securities for sale for the account of the Company or any other Person, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfiedregistered 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 Demanding Stockholder shall have the right to withdraw any Demand (i) prior to the time the Registration Statement in respect of such Demand has been declared effective, (ii) upon the issuance by the Commission or any other governmental agency of a stop order, injunction or other order which interferes with such Registration, (iii) upon the Company's availing itself of Section 4.1(b), or (iv) if such Demanding Stockholder is prevented pursuant to Section 4.1(c) or (d) from selling all of the Applicable Securities it requested to be registered. Notwithstanding such request to withdraw the Demand, the Registration requested by such Demanding Stockholder shall nonetheless be deemed to have been effected (and, therefore, requested) for purposes of Section 4.1(a) hereof if such Demanding Stockholder withdraws any Demand (A) pursuant to clause (i) of the preceding sentence after the Commission filing fee is paid with respect thereto or (B) pursuant to clause (iv) of the preceding sentence in circumstances where at least 50% of the Applicable Securities requested to be included in such Registration 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 an unlimited number 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 Registrations until from such time as such Demanding Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less such Demanding Stockholder shall be required to give the Piggy-back Notice no later than a Registrable Amount3 business days after the Company's delivery of such Intended Offering Notice.
(df) Demand Registrations In the event that any Registration pursuant to this Section 4.1 shall be on such registration form of the SEC for which the Company is eligible as involve, in whole or in part, an underwritten offering, one co-lead managing underwriter shall be selected by the Requesting Stockholders, including, Company and shall be reasonably acceptable to the extent permissibleDemanding Stockholder, an automatically effective registration statement or an existing effective registration statement filed and the other co-lead underwriter shall be selected by the Company with Demanding Stockholder, provided that, in the SECevent 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) of the Demanding Stockholders, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company Any additional co-managing underwriters shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined selected by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) 180 days after the date hereof (or such earlier date (i) as 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 under of the IPO Underwriting Agreement), any Stockholders Person that on the date is a Demand (as hereinafter defined) is made constitute Demand Stockholders Stockholder (a “Requesting Stockholder”) on the date a Demand is made shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are StockholdersAffiliates, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its commercially reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand Demand, which may be an Underwritten Offering;
(ii) all other Registrable Securities which that the Company has been requested to register by the Registering Stockholder pursuant to Section 6.1(b4.1(b); and;
(iii) all Class A Shares which shares of Common Stock that the Company may elect to register in connection with any offering of Registrable SecuritiesSecurities pursuant to this Section 4.1, but subject to Section 6.1(f4.1(f); and
(iv) 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 SharesCommon Stock, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all any other StockholdersPersons that on the date a Demand is delivered to the Company is a Stockholder. Subject to Section 6.1(f4.1(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 ten (10) five days after such notice by the Company’s notice required by this paragraph Company has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b4.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC Commission for which the Company is eligible as shall be selected by the Requesting StockholdersStockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SECCommission, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days three months of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 4.2 (subject to Section 6.1(f4.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, ) or (B) within ninety (90) day three months of any other Underwritten Offering pursuant to Section 6.3(e4.3(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) 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 one hundred and twenty (120) 90 days in the aggregate, in any period of twelve (12) consecutive monthstwelve-month period) 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 held by the Requesting Stockholders Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 6.44.4.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below)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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by HoldingsFIG LLC, for so long as a majority of the Secondary Class B Condition Common Stock of the Company is satisfiedowned by the Initial Stockholder, its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are StockholdersTransferees) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Shareholder Agreements (Nationstar Mortgage Holdings Inc.)
Demand Registration. (a) At any time after If the date that is one hundred and eighty Purchaser shall request (180a "DEMAND") days after the date hereof (or such earlier date (i) as would permit the Company in writing to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration register under the Securities Act of a number 1933, as amended (the "SECURITIES ACT"), any shares of Registrable Securities thatthe Common Stock of the Company (the "COMMON STOCK") acquired by the Purchaser upon exercise of either of the Warrants (the shares of Common Stock so acquired and subject to such request being herein referred to as the "SUBJECT STOCK"), when taken together with the number Company shall use its best efforts to cause the shares of Registrable Securities requested 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 similar form which may be promulgated in the future) or such other form as to which the Company is eligible to file with the Securities and Exchange Commission (the "SEC") under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
such registration; provided, however, that such request shall (i) specify the Registrable Securities 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 Company has been so requested average closing sale price of the Common Stock for the ten (10) trading days preceding the date prior to register the date of the Purchaser's request first received by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
Company, (ii) all other Registrable Securities which express the Company has been requested present intention of the Purchaser to register pursuant to Section 6.1(b); and
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 Class A Shares which the Company such information and materials and take all such action as may elect to register be required in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary order to permit the disposition (in accordance Company to comply with the intended methods thereof) all applicable requirements of the Registrable Securities SEC and to obtain any desired acceleration of the additional Class A Shares, if any, to be so registeredeffective date of such registration statement.
(b) A Demand shall specify: (i) Notwithstanding the aggregate number of Registrable Securities requested to be registered in such Demand Registrationforegoing and Section 4 hereof, (ii) the intended method of disposition in connection with such Demand Registration, upon delivery to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt Purchaser of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In additionnotice, the Company shall be entitled to postpone (upon written notice filing of the registration statement, and may withhold efforts to all Stockholders) cause the registration statement to become effective, for a reasonable period of time (not to exceed ninety (90) days in succession days) if (i) the Company is contemplating filing or the effectiveness of a registration statement for any Demand Registration within ninety (but no more than twice, or for more than one hundred and twenty (12090) days in of such request for registration (which shall not affect the aggregatePurchaser's other rights hereunder, in any period of twelve including without limitation the Purchaser's rights under Section 3 below), (12ii) consecutive months) if the Board Company determines in good faith and in its reasonable judgment that such registration might interfere with or affect the filing negotiation or effectiveness completion of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information any transaction that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement is being contemplated by the Company of (whether or not a final decision has been made to undertake such transaction) at 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 time the right to withdraw delay is exercised, or (iii) the Company determines in good faith that such Demand registration might involve initial or continuing disclosure obligations that might not be in accordance with Section 6.4.
(f) the best interests of the Company or its shareholders. The Company shall not include be required to effect more than one (1) demand registration statement under this Agreement; provided, however, that if any securities other than Registrable Securities in a Demand Registration, except with postponement pursuant to the written consent of Stockholders participating in such Demand Registration that hold a majority of preceding sentence extends beyond 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 date on which the Company, in writing, that, in its opinionWarrants expire, the inclusion of all of the securities, including securities obligations of the Company that are not Registrable Securities, sought hereunder shall be extended by a number of days necessary to be registered in connection with complete the distribution of securities subject to such Demand Registration would adversely affect the marketability postponement. In a case of postponement pursuant to clause (i) of the Registrable Securities sought first sentence of this paragraph (b), the request for registration will not constitute a Demand for purposes of determining the number of Demands permitted pursuant to be sold pursuant thereto, this paragraph unless the contemplated registration by the Company is abandoned or not consummated within the ninety (90) day period and then the Company shall include in such successfully registers the shares of Subject Stock pursuant to the Demand.
(c) If, after a registration statement only such securities as becomes effective, the Company is advised by such underwriter or investment bank can advises the Purchaser that the Company considers it appropriate for the registration statement to be sold without such adverse effect as follows and 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 following order registration statement must be kept current after its effective date shall be extended for an additional number of priority: (i) first, up business days equal to the number of Registrable Securities requested business days during which the right to be included sell shares was suspended pursuant to the preceding sentence, but in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities no event will the Company proposes be required to sell; and (iii) third, all other securities update the registration statement after the expiration of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companythis Agreement.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At Subject to the provisions hereof, at any time on or after the date that is one hundred and eighty (180) 180 days after the date hereof Closing Date (or such earlier date (i) as would permit defined in the Merger Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof file a Registration Statement registering for sale all or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request part of the Company (a “Demand”) for registration their respective Registrable Securities 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (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 terms receipt of this Agreementsuch 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 the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b)register; and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securitiesprovided, but subject to Section 6.1(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 Shareshowever, if any, to be so registered.
(b) A Demand shall specify: that (i) the aggregate number of Holders shall not make a request for a Demand Registration under this Section 4.2(a) for Registrable Securities requested to be registered in such Demand Registrationhaving an anticipated aggregate offering price of less than $5,000,000, (ii) the intended method of disposition Holders will not be entitled to require the Company to effect more than three (3) Demand Registrations in connection with such Demand Registrationthe aggregate under this Agreement, to the extent then known and (iii) the identity Company will not be obligated to effect more than one (1) Demand Registration in any six (6) month period. Table of Contents
(b) The offering of the Requesting Stockholder Registrable Securities pursuant to such Demand Registration may be in the form of an underwritten public offering (or Requesting Stockholdersan “Underwritten Offering”). Within five In such case, (5i) days after receipt the Company may designate the managing underwriter(s) of the Underwritten Offering, provided that such Holders may designate a Demandco-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 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply together with the requirements 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 a Demand 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 Section 6.1(b).
Agreement; provided, that (ci) For so long as the Secondary Class B Condition is satisfiedrepresentations and warranties by, Holdings 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 entitled required to an unlimited number 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 Demand Registrations until each Holder in respect of any indemnification, contribution or other obligation of such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder Holder arising under such underwriting agreement (a) shall be entitled limited to losses arising out of or based upon an unlimited number 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 Demand Registrations until such time as 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 Stockholder Holder (after deduction of all underwriters’ discounts and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(dcommissions) Demand Registrations shall be on such registration form from the disposition of the SEC for which 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 Company is eligible as shall be selected by basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any Demand Registration twelve (A12) within ninety month period, and (90b) days of a “firm commitment” in any Underwritten Offering during any lock-up period required by the underwriter(s) in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% 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 such Stockholders the Holders thereof to be included in such Demand Registration were includedregistration that does not exceed such Underwriters’ Maximum Number, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 registered in connection with such Demand Registration would adversely affect allocated pro rata among the marketability Holders thereof on the basis of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to 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 such 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 StockholdersSEC, which, in the opinion at least 75% of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly Registrable Securities requested to be included in the registration by the Holders are included in such registration statementregistration, pro rata on and the basis 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 number SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of such other securities requested the Registrable Securities pursuant to be included or such other method determined the registration, and in each case less than all of the Registrable Securities covered by the Company.
effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (gii) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration orif, if such Demand Registration is not in the case of an Underwritten Offering, any investment bank engaged in connection therewiththe Company fails to provide Full Cooperation, shall then such registration will be selected deemed not to have been Table of Contents effected for purposes of clause (ii) of the proviso to Section 4.2(a). If (i) by Holdings, for so long a registration requested pursuant to this Section 4.2 is deemed not to have been effected as the Secondary Class B Condition is satisfied, and thereafter 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 Stockholder participating in Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number 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 constituting a plurality at any time prior to the commencement of all Registrable Securities included in 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) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit [***], Purchaser and any permitted transferee of Purchaser (each a “Holder”) [***] shall have the right to require the Company to cause any filings required hereunder file a Registration Statement registering for sale all or part of the Shares held by or issuable to be filed on them (excluding Shares then subject to the 180th day after lock-up restrictions) (collectively, the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting StockholderRegistrable Securities”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the terms of this AgreementCompany (an “Underwritten Offering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable law. The Company shall use its commercially reasonable best efforts to effect the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;register; [***].
(ii) all other Registrable Securities which If the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(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 Sharespursuant to such Demand Registration is an Underwritten Offering, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number Company shall select the underwriter(s) of the Underwritten Offering, subject to the approval of the Holders of a majority of the Registrable Securities requested to be registered sold in the Underwritten Offering, such Demand Registrationapproval not to be unreasonably withheld, conditioned 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 by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering; 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) the intended method of disposition no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in connection with such Demand Registrationa registration other than customary representations, to the extent then known warranties and agreements and (iii) the identity liability of the Requesting Stockholder 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 Requesting Stockholders). Within five (5) days after receipt of a Demandbased 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 shall give written notice by or on behalf of such Demand to all other Stockholders. Subject to Section 6.1(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 Holder expressly for inclusion therein within ten and (10b) days 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 Company’s notice required disposition of the Registrable Securities disposed of by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b)such Holder pursuant to such Underwritten Offering.
(ciii) For so long as If, in connection with a Demand Registration in the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of an Underwritten Offering, the SEC for which managing underwriter(s) give written advice to the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of securities to which such registration 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) so advise all Holders of Registrable Securities requested by such Stockholders to be included in such Underwritten Offering and (ii) include in such registration [***].
(iv) A registration will not be deemed to have been effected as a Demand Registration were includedunless the Registration Statement relating thereto has been declared effective by the SEC, [***] 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, (Bi) within ninety (90) day 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 Underwritten Offering 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 (each, an “Interference”), which Interference does not result from any act or omission of any Holder whose Registrable Securities are registered pursuant to such Registration Statement [***], and (ii) in each case [***] by the effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, then such registration will be deemed not to have been effected for purposes of the last sentence of Section 6.3(e6(a)(i). In additionIf (i) a registration requested pursuant to this Section 6(a) is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 6(a) does not remain continuously effective until the completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company shall continue to be entitled obligated to postpone (upon written notice to all Stockholders) for effect 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 (120pursuant to this Section 6(a) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 registration. In circumstances not including the events described in the immediately two preceding sentences of this Section 6(a)(iv), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration. If, in connection with a Registration at any time prior to the commencement of marketing of such Demand Registration, any managing underwriter (or, if provided that such registration nonetheless shall count as a 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 for purposes of the securities, including securities last sentence of the 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowSection 6(a)(i); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At Subject to the provisions hereof, at any time on or after the date that is one hundred and eighty (1801) days after year anniversary of the date hereof Closing Date (or such earlier date (i) as would permit defined in the Purchase Agreement), the Holders of a majority of Registrable Securities shall have the right to require the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof file a Registration Statement registering for sale all or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request part of the Company (a “Demand”) for registration their respective Registrable Securities 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (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 terms receipt of this Agreementsuch 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 the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by register; provided, however, that (i) the Requesting Stockholders Holders shall not make a request for disposition in accordance with the intended method a Demand Registration under this Section 4.1(a) for Registrable Securities having an anticipated aggregate offering price of disposition stated in such Demand which may be an Underwritten Offering;
less than $5,000,000, (ii) all other Registrable Securities which the Holders will not be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) all Class A Shares which the Company may elect will not be obligated to register effect more than one (1) Demand Registration in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition six (in accordance with the intended methods thereof6) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredmonth period.
(b) A The offering of the Registrable Securities pursuant to such Demand shall specify: Registration may be in the form of an underwritten public offering (an “Underwritten Offering”). In such case, (i) the aggregate number Company may designate the managing underwriter(s) of Registrable Securities requested 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 registered 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 Demand RegistrationUnderwritten Offering, which underwriting agreement shall have indemnification provisions in substantially the form as set forth in Section 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) the intended method of disposition no Holder shall be required to make any representations and warranties to, or agreements with, any underwriter in connection with such Demand Registrationa registration other than customary representations, to the extent then known warranties and agreements and (iii) the identity liability of the Requesting Stockholder 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 Requesting Stockholders). Within five (5) days after receipt of a Demandbased 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 shall give written notice by or on behalf of such Demand to all other Stockholders. Subject to Section 6.1(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 Holder expressly for inclusion therein within ten and (10b) days 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 Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form disposition of the SEC for which 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 Company is eligible as shall be selected by basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) terms of such underwriting agreement. The Company shall not be obligated to effect or participate (a) more than two (2) Underwritten Offerings in any Demand Registration twelve (A12) within ninety month period, and (90b) days of a “firm commitment” in any Underwritten Offering during any lock-up period required by the underwriter(s) in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% 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 such Stockholders the Holders thereof to be included in such Demand Registration were includedregistration that does not exceed such Underwriters’ Maximum Number, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 registered in connection with such Demand Registration would adversely affect allocated pro rata among the marketability Holders thereof on the basis of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to 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 such 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 StockholdersSEC, which, in the opinion at least 75% of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly Registrable Securities requested to be included in the registration by the Holders are included in such registration statementregistration, pro rata on and the basis 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 number SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of such other securities requested the Registrable Securities pursuant to be included or such other method determined the registration, and in each case less than all of the Registrable Securities covered by the Company.
effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (gii) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration orif, if such Demand Registration is not in the case of an Underwritten Offering, any investment bank engaged in connection therewiththe Company fails to provide Full Cooperation, shall then such registration will be selected deemed not to have been effected for purposes of clause (ii) of the proviso to Section 4.1(a). If (i) by Holdings, for so long a registration requested pursuant to this Section 4.1 is deemed not to have been effected as the Secondary Class B Condition is satisfied, and thereafter a Demand Registration or (ii) the registration requested pursuant to this Section 4.1 does not remain continuously effective until forty-five (45) days after the commencement of the distribution by the Stockholder participating in Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number pursuant to this Section 4.1 of the Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.such
Appears in 1 contract
Demand Registration. (a) At any time after following the date that is one hundred of this Agreement and eighty upon written notice from a Holder or Holders of at least twenty percent (18020%) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Registrable Securities (without giving effect to any limitation on exercise or conversion) in the manner set forth in Section 11(h) hereof requesting that Company (a “Demand”) for effect the registration under the Securities Act of a number any or all of the Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act held by such Requesting Stockholder’s Permitted Transferees who are StockholdersHolder as described in Section 2(b) (which notice shall specify the intended method or methods of disposition of such Registrable Securities), equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable best efforts to effect effect, in the manner set forth in Section 5, the registration as promptly as practicable under the Securities Act of:
(i) the of such Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method or methods of disposition stated in such Demand which may 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 an Underwritten Offering;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) all other Registrable Securities which the if, while a registration request is pending pursuant to this Section 2(a), Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register determined in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration good faith that (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 could jeopardize or delay any Demand Registration (but no more contemplated material transaction other than twice, a financing plan involving Company or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause require the disclosure of material, non-public material information that the Company has had a bona fide business purpose for preserving as confidential; or (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 term of this Agreement.
(iii) Company shall not be obligated to file more than two (2) registration statements under the Securities Act relating to a registration request pursuant to this Section 2(a) and shall not be obligated in any event if such a registration request is for a number of Registrable Securities which have an aggregate market value less than $1 million. If such a request shall be for an underwritten offering, such a request must be for a number of Registrable Securities which have an aggregate market value of at least $5 million.
(b) Notwithstanding any other provision of this Agreement to the contrary, a registration requested by a Holder pursuant to this Section 2 shall not be deemed to have been effected (and, therefore, not requested for purposes of Section 2(a)): (A) if it is withdrawn by the requesting 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 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 which were the subject matter of the request; (C) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court 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 of a postponement by the that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, 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 designate the underwriter or underwriters, including the lead managing underwriter of such Demand in accordance with Section 6.4underwritten offering, subject to the reasonable approval of the Holders.
(fd) The Company shall not include any securities 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 a Demand Registration, except any registration pursuant to Section 2(a). In connection with those registrations in which multiple Holders or holders of other registrable securities 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 right 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 participate 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 ("Piggy-back Rights Holders") participate, in the following order of priority: (i) firstevent the facilitating broker/dealer or, up to in an underwritten offering, the lead managing underwriter advises that marketing factors require a limitation on the number of Registrable Securities requested shares to be sold, the number of shares to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can sale or underwriting and registration shall be sold without adversely affecting the marketability of the offering, allocated pro rata among such Stockholders requesting such Demand Registration the Holders and the holders seeking registration pursuant to piggy-back registration rights otherwise granted by Company on the basis of the number 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 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 held 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 then contemplated by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanyHolder.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Kronos Advanced Technologies Inc)
Demand Registration. (a) At Upon written notice to the Issuer from one or more Holders at any time after during such periods as are provided for in the date Lock-Up Agreement or as are agreed by the Issuer (the “Demand Request”) requesting that is one hundred and eighty (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 Commission a registration statement with respect to such Registrable Securities and thereafter use its commercially reasonable efforts to cause such registration statement to be declared effective under the 1933 Act for purposes of dispositions in accordance with the intended method or methods of disposition stated in such request. Notwithstanding any other provision of this Agreement to the contrary:
(i) 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 registered pursuant to the Demand Registration is equal to or more than 1,000,000 shares;
(iii) the 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 required to effect any Demand Registration hereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(or such earlier date b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to this Section 2.01 shall not be deemed to have been 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, (i) as would permit if such Demand Registration has not become effective under the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof 1933 Act or (ii) as is permitted by waiver if such Demand Registration, after it became effective under the IPO Underwriting Agreement)1933 Act, was not maintained effective under the 1933 Act (other than as a result of any Stockholders that stop order, injunction or other order or requirement of the Commission or other government agency or court solely on the date account of a Demand (as hereinafter defined) is made constitute Demand Stockholders (material misrepresentation or omission of a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”Holder) for registration under at least 30 days (or such shorter period ending when all the Securities Act of a number of Registrable Securities thatcovered thereby have been disposed of pursuant thereto) and, when taken together with as a result thereof, the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition cannot be distributed in accordance with the intended method plan of disposition stated distribution set forth in such the related registration statement. So long as a Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which Request is made by the Company has been requested Holders within the periods referred to register pursuant to in Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f2.01(a), the Company Holders shall include in not lose their right to their Demand Registration under Section 2.01 if the Demand Registration covered by related to such Demand all Registrable Securities with respect to which Request is delayed or not effected in 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 given. Such written request shall comply with the requirements of a Demand as circumstances set forth in this Section 6.1(bclause (b).
(c) For so long as The Issuer shall have the Secondary Class B Condition is satisfied, Holdings shall be entitled right to an unlimited number cause the registration of Demand Registrations until such time as additional equity securities for sale for the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form account of the SEC Issuer (but not for which the Company is eligible as shall be selected by account of stockholders other than Holders) in the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by the Holders pursuant to Section 2.01(a) above; provided that if such Stockholders Holders are advised in writing (with a copy to the Issuer) by the lead or 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 Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(eregistration by each). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.; and
(fii) The Company shall not include any securities other than Registrable Securities in a Demand Registrationsecond, 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 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 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 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 Issuer 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, the Issuer shall provide a written notice to each Holder, advising such Holder of its right to include any or all of the Registrable Securities held by such Holder for sale pursuant to the Demand Registration and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the Demand Registration. Any Holder may, within 7 days of delivery to such Holder of a notice pursuant to this Section 2.01(d), elect to so include Registrable Securities in the Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect written notice to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as effect to the Secondary Class B Condition is satisfied, and thereafter (ii) by Issuer specifying the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a 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 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 Demand Registration constituting a plurality registration statement such number of Registrable Securities as the Holders so desire but not to 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 (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 included 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 2.01(e) and prior to the effective date of the registration statement filed in connection with such registration, the Issuer shall determine for any reason not to register the securities to be offered by Issuer, the Issuer shall terminate the Market Interfering Delay and shall give notice to all such Holders and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration. No registration effected under this Section 2.01(e) shall relieve the Issuer of its obligations to effect any Demand RegistrationRegistration 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, 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 the Subsequent Period shall be extended by the number of days equal to the period of any Disadvantageous Condition Delay occurring during the Subsequent Period.
Appears in 1 contract
Sources: Registration Rights Agreement (Credence Systems Corp)
Demand Registration. (a) At 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 Initial Public Offering, any time after the date that is one hundred and eighty (180) days after the date hereof (Holder or such earlier date Holders (i) as would permit the Company desire to cause any filings required hereunder to be filed on the 180th day after the date hereof sell shares of Registrable Securities owned by such Holder or Holders and (ii) as is permitted by waiver an exemption from registration under the IPO Underwriting AgreementSecurities Act or the rules and regulations promulgated thereunder, including, without limitation, Rule 144 (or any successor rules or regulation thereto), any Stockholders that on is not available to enable the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled Holder or Holders to make a 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 (a “Demand”) for effect the registration under the Securities Act of a number all or part of such Holder's or Holders' Registrable Securities and specifying the intended method of disposition thereof, but subject to the limitations set forth herein, the Company will promptly give written notice of such requested registration to all other Holders of Registrable Securities thatSecurities, when taken together and the Company shall file with the number of Registrable Securities requested Commission as promptly as practicable after sending such notice, and use its best efforts to be registered cause to become effective, a registration statement under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than registering the Registrable Amount (a “Demand Registration”) offering and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act sale of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;Holder or Holders; and
(ii) all other Registrable Securities which the Company has been requested to register pursuant by any other Holder thereof by written request given to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering 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), but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofmethod thereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
(b) A Demand shall specify: (i) ; provided, that the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect file a registration statement relating to any Demand Registration registration request under this Section 2(a) (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50unless the aggregate requests by the Holder or Holders for such registration cover not less than 5.0% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were includedoutstanding Common Stock, (B) with respect to more than an aggregate of 3 registrations (which 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) under this Section 2(a), (C) within ninety (90) day a period of 180 days after the effective date of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration any registration request under this Section 2(a), or (D) if with respect thereto, the managing underwriter, the Commission, the Securities Act or the rules and regulations thereunder, or the form on which the registration statement is to be filed, would cause require the disclosure conduct of material, non-public information that an audit other than the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement regular audit conducted by the Company at the end of its 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 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 6.4.
(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 an audit other than 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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowregular audit); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Provantage Health Services Inc)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) publication by the Parent of financial results covering at least 30 days after of post Merger combined operations, upon written notice from the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand Representatives (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”in the manner set forth in Section 11(h) shall be entitled to make a written request of hereof requesting that the Company (a “Demand”) for Parent effect the registration under the Securities Act of a number any or all 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon Securities, which notice shall specify the Company willintended method or methods of disposition of such Registrable Securities, subject to the terms of this Agreement, Parent shall use its reasonable best efforts to effect effect, in the manner set forth in Section 5, the registration as promptly as practicable under the Securities Act of:
(i) the of all of such Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method or methods 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 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securitiesrequest, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specifyprovided that: (i) 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 aggregate number Holder requesting registration) by the lead underwriter of Registrable Securities requested to be registered the proposed offering described below that, in such Demand Registrationfirm'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) the intended method of disposition in connection with such Demand Registrationif, while a registration request is pending pursuant to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to this Section 6.1(f2(a), the Company shall include Parent has determined 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided good faith that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause require the disclosure of material, material non-public information that the Company Parent has a bona fide business purpose for preserving as confidential. In , Parent shall not be required to effect a registration pursuant to this Section 2(a) until the event 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 with a then market value of less than $150 million or (B) more than 36 months have elapsed since the Effective Time; (iv) at least four months have elapsed since the last request made by the Representatives on behalf of any Holders; and (v) no more than three demands under this Section 2 shall be required to be honored.
(b) Notwithstanding any other provision of this Agreement to the contrary: (i) a registration requested on behalf of a postponement Holder pursuant to this Section 2, shall not be deemed to have been effected (and, therefore, not requested for purposes of subsection 2(a)), (A) unless the registration statement filed with respect to such Holder's Registrable Securities has become effective or (B) if after it has become effective such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by such Holder and, as a result thereof, all of the Registrable Securities requested to be registered cannot be distributed in accordance with the plan of distribution set forth in the related registration statement or (C) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied (other than by reason of an act or omission by such Holder) or waived by the Company underwriters; and (ii) a registration requested by a Holder pursuant to this Section 2 and later withdrawn at the request of such Holder shall be deemed to have been effected (and, therefore, requested for purposes of Section 2(a)), whether withdrawn by the Holder prior to or after the effectiveness of such requested registration, unless such request is withdrawn by a Holder prior to the filing or effectiveness of a registration statement for with the SEC; and (c) In the event that any registration pursuant to this Section 2 shall involve, in whole or in part, an underwritten offering, a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholders Holder shall have the right to withdraw designate an underwriter reasonably satisfactory to Parent as a co-manager of such Demand in accordance with Section 6.4.
(f) The Company underwritten offering and Parent shall not include any securities other than Registrable Securities in a Demand Registration, except with have the written consent of Stockholders participating in such Demand Registration that hold a majority of right to designate the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing lead 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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up reasonably satisfactory to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number Holder of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companyunderwritten offering.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At The Company shall, upon the written demand of the Buyer at any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number acquisition 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this AgreementSecurities, use its reasonable best efforts to effect the registration as promptly as practicable (the "Demand Registration") under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 Buyer as shall have be indicated in a written demand sent to the right Company by the Buyer; provided, however, that the Company shall not be required to withdraw such 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 accordance with Section 6.4.
(f) 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 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, pay all expenses in connection with a Demand Registration. Upon receipt of the Buyer's written demand, the Company shall expeditiously (but 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 Company shall not 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 public offering of its securities and, in the judgment of the managing underwriter thereof (oror the Company, if such Demand Registration offering is not an Underwritten Offeringunderwritten) 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 nationally recognized investment bank registration statement or (III) the Company is engaged in connection with such 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) advises , subject to the approval of the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are which approval will 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companyunreasonably withheld.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Stock Purchase and Registration Rights Agreement (Group Technologies Corp)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (On or such earlier date (i) as would permit prior to each Filing Date, the Company to cause any filings required hereunder shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) hereunder shall be entitled on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders or to make a written request any disclosure contained therein not misleading) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities thatSelling Stockholder” section attached hereto as Annex B; provided, when taken together with the number of Registrable Securities requested however, that no Holder shall be required to be registered under the Securities Act by named as an “underwriter” without such Requesting StockholderHolder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject express prior written consent. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to effect the registration as promptly as practicable cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall notify the Holders via e-mail of the effectiveness of a Registration Statement as promptly as practicable, and shall, if requested, provide the Holders with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its reasonable best efforts to file an amendment or amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); and subject to the provisions of Section 2(d) with respect to payment of liquidated damages with respect to filing on Form S-3 or other appropriate form; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission to maximize the number of Registrable Securities to be registered), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) the Registrable Securities which First, the Company has been so requested shall reduce or eliminate any securities to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offeringincluded other than Registrable Securities;
(ii) all other Second, the Company shall reduce Registrable Securities which represented by Warrant Shares (applied, in the Company has been requested case that some Warrant Shares may be registered, to register pursuant to Section 6.1(bthe Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandThird, the Company shall give written notice reduce Registrable Securities represented by Shares (applied to the Holders on a pro rata basis based on the total number of such Demand to all other Stockholders. Subject to Section 6.1(f), the Company shall include in the Demand Registration covered unregistered Shares held by such Demand all Registrable Securities 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 given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(bHolders).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by reduction hereunder, the Company of shall give the filing or effectiveness of a registration statement for a Demand Registration, Holder at least five (5) Trading Days’ prior written notice along with the holders of a majority of Registrable Securities held by calculations as to such ▇▇▇▇▇▇’s allotment. In the Requesting Stockholders shall have event the right to withdraw such Demand Company amends the Initial Registration Statement in accordance with Section 6.4.
(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 registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant theretoforegoing, then the Company shall include in such registration statement only such securities use its reasonable best efforts to file with the Commission, as promptly thereafter as allowed by Commission or SEC Guidance provided to the Company is advised by or to registrants of securities in general, one or more registration statements on Form S-3 or such underwriter or investment bank can be sold without such adverse effect other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as follows and in the following order of priorityamended.
(d) If: (i) firstthe Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Lead Investor the opportunity to review and comment on the same as required by Section 3(a) herein, up the Company shall be deemed to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion have not satisfied this clause as of the underwriter can be sold without adversely affecting the marketability of the offeringFiling Date (i)), pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company proposes fails to sell; and file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified in writing by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, (iii) third, a Registration Statement registering for resale all other securities of the Company duly requested to be included in such registration statement, pro rata on Registrable Securities is not declared effective by the basis Commission by the Effectiveness Date of the number Initial Registration Statement or (iv) after the effective date of a Registration Statement, such other securities requested Registration Statement ceases for any reason to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve remain continuously effective as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationRegistration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowed Delay), for more than fifteen (15) consecutive calendar days or more than an aggregate of twenty (20) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iii), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iv) the date on which such fifteen (15) or twenty (20) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 12.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven Trading Days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no liquidated damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Holder and the Company’s transfer agent, if any, (ii) to a Holder with respect to an Event caused by any action of such Holder or failure of such Holder to take any action that such ▇▇▇▇▇▇ is required to take hereunder, or (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities because of possession of material non-public information.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company 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.
(f) Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Harpoon Therapeutics, Inc.)
Demand Registration. If, (ai) At at any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof April 2, 2006, or (ii) prior to April 1, 2006 in the event of a CHANGE OF CONTROL or INSOLVENCY PROCEEDINGS as is permitted by waiver under those terms are defined in the IPO Underwriting Purchase Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) Purchaser shall be entitled to make a written request of the Company (a “Demand”) for registration in writing to register under the Securities Act of a number 1933, as amended (the "SECURITIES ACT"), any shares of Registrable Securities thatthe Common Stock, when taken together with par value $0.001, of the number Company (the "COMMON STOCK") issuable upon conversion of Registrable Securities requested to be registered under the Series A Non-Voting Convertible Preferred Stock, par value $0.001 (the "PREFERRED STOCK") and, if required by the Securities Act 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 Requesting Stockholder’s Permitted Transferees who are Stockholdersrequest being herein referred to as the "SUBJECT STOCK"), equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, shall use its reasonable 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 or such other form as promptly as practicable is then available (or any successor form of registration statement to such Form S-3 or other available registration statement) with the SEC under the Securities Act of:
to effect such registration; PROVIDED, HOWEVER, that each such request shall (i) specify the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the number of shares of Subject Stock 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 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registrationoffered and sold, (ii) express the intended method present intention of disposition in connection with the Purchaser to offer or cause the offering of such Demand Registrationshares of Subject Stock for distribution, to the extent then known and (iii) describe the identity nature or method of the Requesting Stockholder proposed offer and sale thereof, and (or Requesting Stockholders). Within five (5iv) days after receipt contain the undertaking of a Demand, the Purchaser to provide all such information and materials and take all such action as may be required in order to permit the Company shall give written notice to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Demand to all other Stockholdersregistration statement. Subject to Section 6.1(f), the Company The Purchaser 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall not be entitled to an unlimited number of Demand Registrations until such time as request more than one demand registration statement under this Agreement in any twelve-month period, and the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder Purchaser shall not be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less more than a Registrable Amount.
(d) Demand Registrations shall be on such total of two requests for demand registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights statements pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4this Agreement.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (American Millennium Corp Inc)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) commencing 180 days after the date hereof ------------------- Initial Public Offering and for so long as the Company shall not be eligible to file a Registration Statement on Form F-3 (or any successor form relating to secondary offerings), each of the Holders may request, in writing, that the Company effect a registration on Form F-1 or Form F-2 (or any successor form) of Registrable Shares held by such Holder having an aggregate offering price to the public of at least $50,000,000.00. Following receipt of any notice pursuant to this Section 2, the Company shall immediately notify all Holders from whom notice has not been received and shall use its best efforts to register under the Securities Act, for public sale in accordance with the method of distribution specified in such notice from the requesting Holder or Holders, the number of Registrable Shares specified in such notice (and in all notices received by the Company from other Holders within 30 days after the giving of such notice by the Company). If such method of distribution shall be an underwritten public offering, the Holder of a majority of the Registrable Shares to be sold in such offering may designate the managing underwriter of such offering, subject to the approval of the Company, which approval shall not be unreasonably withheld or delayed. If a registration pursuant to this Section 2 is, in whole or in part, an underwritten public offering, the Company shall provide such assistance with respect to the offering as may be reasonably requested by the requesting Holders or the underwriters, including, but not limited to, causing members of the Company's senior management team to participate in "roadshow" presentations for the purpose of the marketing of the Registrable Shares to be sold by the underwriters. The Company shall not be required to effect more than one such registration at the request of each of the CGIP Group and the Floscule Group under this Section 2; provided that such -------- obligation shall be deemed satisfied only when a Registration Statement covering all Registrable Shares specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting Holders, shall have become effective and, if such method of disposition is a firm commitment underwritten public offering, all such shares shall have been sold pursuant thereto. The Company will use its best efforts to maintain the effectiveness for up to 90 days (or such earlier date shorter period of time as the underwriters need to complete the distribution of the registered offering) of any Registration Statement pursuant to this Section 2.
(ib) as would permit the 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request include in any Registration Statement referred to in this Section 2, for sale in accordance with the method of disposition specified by the requesting Holders, Class A Common Shares to be sold by the Company for its own account; provided, that if the proposed method -------- of disposition specified by the requesting Holders shall be an underwritten public offering, the shares to be included in such an offering shall be reduced if and to the extent that the managing underwriter shall be of the Company (a “Demand”) for registration under opinion that such inclusion would adversely affect the Securities Act marketing of a number of the Registrable Securities that, when taken together with the number of Registrable Securities requested Shares to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration sold. Such reduction will be effected as promptly as practicable under the Securities Act offollows:
(i) the Registrable Securities which First, any shares to be sold by the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may shall be an Underwritten Offering;reduced; and
(ii) Second, if all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, shares to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed sold by the Company with are excluded from the SECoffering, and then the Registrable Shares of the requesting Holders shall be reasonably acceptable reduced, such reduction to be made pro rata among the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of ---- requesting Holders based on the number of Registrable Securities requested Shares owned by such Stockholders to be included in such Demand Registration were includedrequesting Holders. Except for registration statements on Form ▇-▇, (B) within ninety (90) day of ▇-▇ or any other Underwritten Offering pursuant to Section 6.3(e). In additionsuccessor thereto, the Company shall be entitled will not file with the Commission any other Registration Statement with respect to postpone (upon written its Class A Common Shares, whether for its own account or that of other stockholders, from the date of receipt of a notice from requesting Holders pursuant to all Stockholders) for a reasonable this Section 2 until the completion of the period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness distribution 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 held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 6.4contemplated thereby.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Compagnie Generale D Industrie Et De Participations)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after following the date hereof or (ii) as is permitted by waiver under initial Public Offering, upon the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of WCAS or FFT (the Purchaser or Purchasers making such request, a "DEMAND PARTY") requesting that the Company (a “Demand”) for effect the registration under the Securities Act of a number all or part of Registrable Securities thatsuch Demand Party's Restricted Stock and specifying the amount and intended method of disposition thereof, when taken together with the number Company will promptly give written notice of Registrable Securities such requested registration to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) other holders of outstanding Restricted Stock and thereupon the Company will, subject to the terms of this Agreementas expeditiously as possible, use its reasonable best efforts file a registration statement to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities such shares of Restricted Stock which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;Party; and
(ii) all the other Registrable Securities shares of Restricted Stock which the Company has been requested to register pursuant by written request given to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering within 20 days after the giving of Registrable Securities, but subject to Section 6.1(fsuch written notice by the Company (which request shall specify the amount and intended method of disposition of such securities); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofmethod thereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, Restricted Stock so to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, ; PROVIDED that the Company shall give written notice not be required to effect the registration of such Demand to all other Stockholders. Subject to Section 6.1(f), Restricted Stock at 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in FFT under this Section 6.1(b6 on more than one occasion, except as provided in Section 6(d).
(c) For so long as ; and PROVIDED, FURTHER, that the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect file a registration statement relating to any Demand Registration registration request under this Section 6(a):
(Ax) within ninety a period of 180 days (90or such lesser period as the managing underwriters in an underwritten offering may permit) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of after the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day effective date of any other Underwritten Offering pursuant registration statement relating to Section 6.3(e). In additionany registration request under Sections 4, 5 or 6 hereof;
(y) if with respect thereto the managing underwriter, the Commission, the Securities Act or the rules and regulations thereunder, or the 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 shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period at the end of time not to exceed ninety (90) days its fiscal year, in succession which case the filing or may be delayed until the effectiveness completion of a registration statement for any such audit (and the Company shall, upon request of the Demand Registration Parties, use its reasonable efforts to cause such audit to be completed expeditiously and without unreasonable delay); or
(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 monthsz) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of such information would not be in the best interests of the Company and its stockholders, in its reasonable judgment that which case the filing or effectiveness of the registration statement relating may be delayed until the earlier of (i) the second business day after such conditions shall have ceased to such Demand Registration would cause exist and (ii) 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 90th day after receipt by the Company of the filing or effectiveness written request from a Demand Party to register Restricted Stock under this Section 6(a). Nothing in this Section 6(a) shall operate to limit the right of a Purchaser to request the registration statement for a Demand Registrationof Restricted Stock that consists of Company Common Stock issuable upon conversion, exercise or exchange of Company Class A Common Stock held by such Purchaser notwithstanding the fact that at the time of request such Purchaser holds only Company Class A Common Stock ; PROVIDED that the only securities the Company shall be required to register pursuant hereto shall be shares of Company Common Stock. The number of shares of Restricted Stock to be included in such an underwriting may be reduced (PRO RATA among the holders of a majority Restricted Stock requesting registration pursuant to this Section 6 based on the number of Registrable Securities held shares of Restricted Stock owned by any such holder on the Requesting Stockholders shall have the right to withdraw date of such Demand in accordance with Section 6.4.
(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 request out of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any total outstanding shares of Company Capital Stock on that date) if and to the extent that the 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 shall be of the securities, including securities of the Company opinion that are not Registrable Securities, sought to be registered in connection with such Demand Registration inclusion would adversely affect the marketability marketing of the Registrable Securities sought Restricted Stock to be sold pursuant thereto, then by the Company therein; PROVIDED, HOWEVER, that such number of shares of Restricted Stock shall include not be reduced if any shares are to be included in such underwriting for the account of any person other than the Company and the holders of Restricted Stock; PROVIDED FURTHER that any securities that the Company proposes to sell for its own account under such registration statement only such securities as the Company is advised shall be reduced prior to any reduction of Restricted Stock held 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 Purchaser; PROVIDED FURTHER that the number of Registrable Securities shares of Restricted Stock held by the FFT Purchasers that this Section 6 permits to be included in a registration may be allocated among the FFT Purchasers as such parties shall agree. In the event that the number of shares of Restricted Stock requested to be included in such Demand Registration by registration is less than the Stockholders, number which, in the opinion of the underwriter managing underwriter, can be sold without adversely affecting sold, the marketability of the offering, pro rata among Company may include in such Stockholders requesting such Demand Registration on the basis of registration securities it proposes to sell for its own account up to the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) secondthat, securities in the Company proposes to sell; and (iii) third, all other securities opinion of the Company duly requested to underwriter, can be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Companysold.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At Commencing March 8, 2007, any time after Requesting Holder may make a written request to the date Company (specifying that it is one hundred being made pursuant to this Section 2) that the Company file a registration statement under the 1933 Act (or a similar document pursuant to any other statute then in effect corresponding to the 1▇▇▇ ▇▇▇) covering the registration of Registrable Stock. In such event the Company shall (i) within ten (10) days thereafter notify in writing all other Holders of Registrable Stock of such request, and eighty (180ii) use commercially reasonable efforts to cause such registration statement to be prepared and filed with the Commission under the 1933 Act registering the resale of all Registrable Stock that the Requesting Holders and such other Holders have, within forty-five (45) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so given such notice, requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand If the Holders intend to distribute the Registrable Stock covered by their request by means of an underwritten offering, they shall specify: (i) so advise the aggregate number Company. All Holders proposing to distribute Registrable Stock through such underwritten offering shall enter into an underwriting agreement in customary form with the underwriter or underwriters. Such underwriter or underwriters shall be selected by a majority in interest of the Holders and shall be approved by the Company, which approval shall not be unreasonably withheld; provided, that all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such Holders; and provided further, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the Registrable Securities requested to be registered in Stock of such Demand Registration, (ii) the Holder and such Holder’s intended method of disposition in connection with such Demand Registration, to the extent then known distribution and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all any other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice representation required by this paragraph has been given. Such written request shall comply with law or reasonably required by the requirements of a Demand as set forth in this Section 6.1(b)underwriter.
(c) For Notwithstanding any other provision of this Section 2 to the contrary, if the managing underwriter of an underwritten offering of the Registrable Stock required to be registered pursuant to this Section 2 advises the Holders in writing that in its opinion marketing factors require a limitation of the number of shares to be underwritten, the Holders shall so long advise all Holders of Registrable Stock that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Stock that may be included in such underwritten offering shall be allocated among all such Holders, including the Holders, in proportion (as nearly as practicable) to the Secondary Class B Condition is satisfiedamount of Registrable Stock requested to be included in such registration by each Holder at the time of filing the registration statement; provided, Holdings that in the event of such limitation of the number of shares of Registrable Stock to be underwritten, the Holders shall be entitled to an unlimited number additional demand registration pursuant to this Section 2. If any Holder of Demand Registrations until Registrable Stock disapproves of the terms of the underwriting, such time as Holder may elect to withdraw by written notice to the Stockholders Company, the managing underwriter and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountthe Holders. After the Secondary Class B Condition ceases to The securities so withdrawn shall also be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountwithdrawn from registration.
(d) Demand Registrations shall be on such registration form Notwithstanding any provision of this Agreement to the SEC for which contrary, the Company is eligible as shall not be selected by required to effect a registration pursuant to this Section 2 during the Requesting Stockholders, including, to period starting with the extent permissible, fourteenth (14th) day immediately preceding the date of an automatically effective registration statement or an existing effective registration statement filed anticipated filing by the Company with the SECof, and ending on a date ninety (90) days following the effective date of, a registration statement pertaining to a public offering of securities for the account of the Company; provided, that the Company shall actively employ in good faith all reasonable efforts to cause such registration statement to become effective; and provided further, that the Company’s estimate of the date of filing such registration statement shall be reasonably acceptable to the Companymade in good faith.
(e) The Company shall not be obligated to effect any Demand Registration and pay for a total of only one (A1) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights registration pursuant to this Section 2, unless increased pursuant to Section 6.2 2(c) hereof; provided, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2(e), unless (i) it has been declared effective by the Commission (ii) if it is a shelf registration, it has remained effective for the period set forth in Section 3(b), (iii) the offering of Registrable Stock pursuant to such registration is not subject to Section 6.1(fany stop order, injunction or other order or requirement of the Commission (other than any such action prompted by any act or omission of the Holders), and (iv) and provided that at least 50% no limitation of the number of shares of Registrable Securities requested by such Stockholders Stock to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering underwritten has been required pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders2(c) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4hereof.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Digifonica International Corp)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make After receipt of a written request of from one or more Holders requesting that the Company (effect a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon under the Securities Act covering all or part of the New Registrable Securities which specifies the intended method or methods of disposition thereof, the Company willshall promptly notify all Holders in writing of the receipt of such request and each such Holder, subject in lieu of exercising its rights under Section 4 hereof, may elect (by written notice sent to the terms Company within ten (10) Business Days from the date of such Holder’s receipt of the aforementioned notice from the Company) to have all or part of such Holder’s New Registrable Securities included in such registration thereof pursuant to this AgreementSection 3, and such Holder shall specify in such notice the number of New Registrable Securities that such Holder elects to include in such registration. Thereupon, the Company shall, as expeditiously as is possible, but in any event no later than thirty (30) days (excluding any days which occur during a permitted Blackout Period under Section 6 below) after receipt of a written request for a Demand Registration, file with the SEC and use its reasonable best efforts to effect the cause to be declared effective, a registration as promptly as practicable under the Securities Act of:
statement (ia “Demand Registration Statement”) the relating to all shares of New Registrable Securities which that the Company has been so requested to register by the Requesting Stockholders such Holders (“Participating Demand Holders”) 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 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securitiessale, but subject to Section 6.1(f); all to the extent necessary required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the New Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) ; provided, however, that the aggregate number value of the New Registrable Securities requested to be registered in (i) be at least $10,000,000, based on the closing trading price of the Common Stock on the date the demand to file such Demand Registration, Registration Statement is made or (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity be at least 20% of the Requesting Stockholder New Registrable Securities initially issuable upon exercise of the Warrants.
(or Requesting Stockholders). Within five (5b) days after receipt If the majority-in-interest of the Participating Demand Holders in a Demand, Demand Registration relating to a public offering requests that the Company shall give written notice offering be underwritten with a managing underwriter selected in the manner set forth in Section 14 below and such managing underwriter of such Demand to all other Stockholders. Subject to Section 6.1(f), Registration advises 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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, writing that, in its opinion, the inclusion number of all of the securities, including securities of the Company that are not Registrable Securities, sought to be registered included in connection with such Demand Registration would adversely affect 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 the Registrable Securities sought to be sold pursuant theretoSecurities”), then the Company shall include in such registration statement only such securities as Demand Registration 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 that the Participating Demand Holders and the participating Old Piggy-Back Holders have requested to be included in such Demand Registration by registered thereunder only to the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of extent the number of such securities held by Registrable Securities does not exceed the Maximum Number of Securities. If such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) secondamount exceeds the Maximum Number of Securities, 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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting shall be allocated among all the Participating Demand Holders and the participating Old Piggy-Back Holders on a plurality pro rata basis (based on the number of all Registrable Securities held by each Participating Demand Holder and participating Old Piggy-Back Holder). If the amount of such Registrable Securities does not exceed the Maximum Number of Securities, the Company may include in such Demand Registration any other securities of the Company and other securities held by other security holders of the Company as the Company may in its discretion determine or be 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.
(c) Holders shall be entitled to an aggregate of two (2) registrations of New Registrable Securities pursuant to this Section 3 (each, a “Demand for Registration”) in addition to the Shelf Registration Statement pursuant to Section 2; provided that a registration requested pursuant to this Section 3 shall not be deemed to have been effected for purposes of this Section 3(c) unless (i) it has been declared effective by the SEC, (ii) it has remained effective for the period set forth in Section 7(a), (iii) Holders of New Registrable Securities included in such registration have not, prior to the filing of the relevant Demand Registration Statement, withdrawn sufficient shares from such registration such that the remaining Holders requesting registration would not have been able to request registration under the provisions of Section 3, and (iv) the offering of New Registrable Securities pursuant to such registration is not subject to any stop order, injunction or other order or requirement of the SEC (other than any such stop order, injunction, or other order or requirement of the SEC prompted by act or omission of Holders of New Registrable Securities); provided, however, that if, as a result of the inclusion of Old Registrable Securities held by participating Old Piggy-Back Holders, the Participating Demand Holders are not able to register and sell at least two-thirds of the New Registrable Securities requested to be included in a Demand Registration, then such Demand Registration shall not be counted as one of the two Demands for Registration provided for pursuant to this Section 3(c).
(d) Notwithstanding anything to the contrary contained herein, the Company shall not be required to prepare and file (i) more than two (2) Demand Registration Statements in any twelve-month period, (ii) any Demand Registration Statement within 180 days following the date of effectiveness of any other Registration Statement or (iii) any Demand Registration Statement within 90 days following the date of effectiveness of any other registration statement filed pursuant to the Old Registration Agreement or with respect to the sale of Common Stock by the Company (or such longer period of time as may be specified in an underwriting agreement relating to such registration statement).
Appears in 1 contract
Sources: Registration Rights Agreement (Pac-West Telecomm Inc)
Demand Registration. (a) At any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) HEI shall have the right, on not more than four occasions in the aggregate, and no more frequently than once during any six-month period, and (ii) the Minority Stockholders as would permit a group shall have the right (though such right need not be jointly exercised by the Minority Stockholders), on not more than two occasions in the aggregate (it being understood and agreed that two or more Minority Stockholders may make joint Demands hereunder or any Minority Stockholder may join in a Demand made by any other Minority Stockholder, and any such joint Demand or joining in of 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 cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver register for offer and sale under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders Securities Act (a “Requesting "Demand") all or a portion of the Registrable Securities held by such Stockholder”) , subject to the restrictions set forth herein; provided that no Stockholder shall be entitled to make a written request of Demand As promptly as practicable after the Company receives from a Stockholder (the "Demanding Stockholder") a notice pursuant to this Section 4.1(a) (a “Demand”) "Demand Notice"), a copy of which shall have also been delivered to each other Minority Stockholder at the same time as to the Company, demanding that the Company register for registration offer and sale under the Securities Act of a number of Registrable Securities thatSecurities, when taken together subject to Section 4.1(b), the Company shall (i) use all reasonable efforts to file as promptly as reasonably practicable with the number Commission a Registration Statement relating to the offer and sale of Registrable the Applicable Securities requested 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, (ii) after the filing of an initial version of the Registration Statement, use reasonable efforts to cause such Registration Statement to be registered declared effective under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under after the date of filing 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 Act of:
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 Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method Effective Time of disposition stated in such Demand which may be an Underwritten Offering;
Registration Statement and (ii) such time as all other Registrable Securities which of such securities have been disposed of by the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredselling securityholders.
(b) A Demand The Company shall specify: have the right to postpone (ior, if necessary or advisable, withdraw) the aggregate number of Registrable Securities requested to be registered in such Demand Registrationfiling, (ii) or delay the intended method of disposition in connection with such Demand Registrationeffectiveness, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandRegistration Statement, or fail to keep such Registration Statement continuously effective or not amend or supplement the Registration Statement or included Prospectus, if the Company determines based upon the advice of counsel that it would be advisable to not disclose in the Registration Statement a planned or proposed financing, acquisition or other corporate transaction or other material information, and the Company shall give written notice have determined in good faith that such disclosure is not in the best interests of the Company and its stockholders; provided that no one such postponement shall exceed 90 days in any six-month period and all such postponements shall not exceed 180 days in the aggregate. The Company shall advise the Demanding Stockholder of any such determination as promptly as practicable after such determination.
(c) In connection with an underwritten offering, if the managing underwriter or underwriters advise the Company that in its or their opinion the number of Applicable Securities subject to a Demand to all other Stockholders. Subject to Section 6.1(f)exceeds the number which can be sold in such offering, the Company shall include in the Demand such Registration covered by such Demand all Registrable Securities 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 given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Applicable Securities requested by that, in the opinion of such Stockholders to managing underwriter or underwriters, can be included sold in such Demand Registration were included, offering (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 aggregateprovided that, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by joint Demand, the Company Applicable Securities included shall be allocated pro rata among the Demanding Stockholders on the basis 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 6.4.
(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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the relative number of Registrable Applicable Securities each such Demanding Stockholder has requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowRegistration); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. If the Investor is unable to sell shares of Common Stork within eighteen (a18) At any time months after the date that is one hundred and eighty (180end of the Restriction Period pursuant to Rule 144(k) days after the date hereof (or such earlier date (ia successor rule) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of or on a number of Registrable Securities thatPiggyback Registration Statement, when taken together with the number of Registrable Securities requested Investor shall have the right to be registered require the Company to file one registration statement under the Securities Act by on a Form S-3, provided such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or registration form is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject available to the terms Company, to register shares of Common Stock acquired under this Agreement, use its reasonable best efforts Agreement for sale in a public offering that is not to effect the registration as promptly as practicable be made on a continuous or delayed basis pursuant to Rule 415 (or a successor rule) under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested and that is expected to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all yield net proceeds to the extent necessary to permit the disposition Investor of at least Five Million Dollars ($5,000,000), as specified in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), from 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable Investor to the Company.
(ei) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of Following the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day Company's receipt of any other Underwritten Offering pursuant to notice under this Section 6.3(e8(b). In addition, the Company shall be entitled use its best efforts to postpone register under the Securities Act, as soon as reasonably practicable, the number of shares of Common Stock specified by the Investor in such notice (upon written notice to all Stockholdersor such lesser number as the managing underwriter(s) for a reasonable period in such offering believes will not unduly jeopardize the success of time not to exceed ninety (90) days in succession the offering); provided, however, that the Company may delay the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating for as long as
(A) the request for registration pursuant to such Demand Registration this Section 8(b) would cause require the Company to include in the registration statement on the filing date or on the expected effective date audited financial statements which are not yet required to be filed with the Commission under the Exchange Act; or
(B) the Company's board of directors reasonably determines that the disclosure required in the registration statement or the pricing of material, non-public information that the offering would adversely affect the Company has or its ability to engage in a bona fide business purpose for preserving as confidential. planned registered public offering or in any other planned activity.
(ii) In the event of that the Investor makes a postponement by demand for registration as described in this Section 8(b), 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 register other shares of Common Stock in the registration statement; PROVIDED, HOWEVER, that such Demand shares shall not be included to the extent provided in accordance Section 8(f) below, if applicable, and in all other situations, such shares (other than the Original Registration Stock) shall not be included to the extent that the Investor determines in good faith that the inclusion of such shares will interfere with the successful marketing of the Investor's shares to be included therein; PROVIDED, FURTHER, that, if the number of shares to be so included exceeds the number of the Investor's shares included therein, such registration shall be deemed to be a registration pursuant to Section 6.48(a) hereof.
(fiii) The Company shall not include managing underwriter(s) for 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 underwritten public offering pursuant 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowthis Section 8(b); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as mutually acceptable to the Secondary Class B Condition is satisfied, Company and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationInvestor.
Appears in 1 contract
Demand Registration. (a) At any time after Upon the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of any ------------------- Philips Person (provided that such request may be made only with the prior written approval of the Shareholder at any time that the Shareholder or its Affiliates own any Registrable Securities) requesting that the Company (a “Demand”) for effect the registration under the Securities Act Act, or the listing or other qualification for sale on any European exchange, of a number all or part of the Registrable Securities thatowned by such Philips Person, when taken together and specifying the intended method of disposition thereof (including the exchange or market through which such Philips Person intends to effect such disposition, if applicable), but subject to the limitations set forth herein, the Company will promptly (but in no event more than five Business Days after the receipt of such request) give written notice of such requested registration, listing or other qualification to all other Philips Persons, and the Company shall file with the number of Registrable Securities requested appropriate authorities, self-regulatory organization or stock exchange, as promptly as practicable after sending such notice, and use its best efforts to be registered cause to become effective, any necessary registration statement under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than listing particulars or other appropriate documentation under applicable non-U.S. securities laws in order to be effectuate the Registrable Amount (a “Demand Registration”) offering and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act sale of:
(i) the Registrable Securities which the Company has been so requested to register register, list or otherwise qualify by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;Philips Person, and
(ii) all other Registrable Securities which the Company has been requested to register pursuant register, list or otherwise qualify by any other Philips Person by written request given to Section 6.1(b); and
(iii) all Class A Shares which the Company may elect within 30 days after the giving of such written notice by the Company (which request shall specify the intended method of disposition of such Registrable Securities (including the exchange or market through which it intends to register in connection with any offering of Registrable Securitieseffect such disposition, but subject to Section 6.1(fif applicable); ), all to the extent necessary to permit the disposition (in accordance with the intended methods thereofmethod thereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, so to be so registered.
, listed or otherwise qualified (b) A Demand shall specify: a "DEMAND REGISTRATION"); provided, that (iW) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect file a registration statement, listing particulars or other similar document pursuant to this Section 2 on more than an aggregate of two occasions, (X) the Company shall not be obligated to file a registration statement, listing particulars or other similar document pursuant to this Section 2 unless the aggregate amount of Registrable Securities that any Philips Persons seek to register pursuant to this Section 2 constitutes the lesser of (i) at least 20% of all Registrable Securities initially held by Philips Persons, (ii) Registrable Securities with an aggregate proposed sales price of at least U.S. $10,000,000 and (iii) all of the remaining Registrable Securities then outstanding, (Y) UPC shall not be obligated to file a registration statement, listing particulars or other similar document pursuant to this Section 2 other than in the primary market for the Registrable Securities in respect of which the Demand Registration shall be made, if any, and if there is no primary market for such Registrable Securities, UPC shall be obligated to file a registration statement, listing particulars or other similar document pursuant to this Section 2 in the European or U.S. market through which the Philips Person intends to effect the disposition hereunder, and (AZ) within ninety (90) days if, with respect to such requested registration, listing or other qualification, the managing underwriter, the appropriate authorities, self-regulatory organization or stock exchange, the Securities Act or the rules and regulations thereunder, or applicable [non-U.S.] securities laws, would require the conduct of a “firm commitment” Underwritten Offering an audit other than the regular audit conducted by the Company at the end of its fiscal year, in which all Stockholders were given “piggyback” rights pursuant case such registration, listing or other qualification may be delayed until the completion of such regular audit and the filing of such audited financial statements with the appropriate authorities, self-regulatory organization or stock exchange (unless each of the Philips Persons involved in the registration agrees to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of pay the pro rata share, based on the number of Registrable Securities that such Philips Person has requested be registered, of the Company's expenses in connection with such a special audit). The Company shall not allow any other Person other than a Philips Person or the Company to include any securities in such Demand Registration.
(b) If the Philips Persons requesting a Demand Registration so elects (provided that such election, including the choice of underwriter, may only be made with the prior written approval of the Shareholder at any time the Shareholder or its Affiliates own any Registrable Securities), a Demand Registration pursuant to this Section 2 shall be in the form of an underwritten offering through two co-underwriters which shall be an investment banking firm or firms of established reputation one of which shall be designated by the Philips Persons demanding such Stockholders registration designation and the other of which shall be designated by the Company. If a Demand Registration pursuant to this Section 2 involves an underwritten offering and the managing underwriter advises the Shareholder and the Company in writing that, in its opinion, the number of securities requested to be included in such Demand Registration were includedexceeds the number which can be sold in such offering without a significant adverse effect on the price, (B) within ninety (90) day timing or distribution of any other Underwritten Offering pursuant the Registrable Securities to Section 6.3(e). In additionbe offered, then the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(f) The Company shall not will 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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up 100% of the Registrable Securities which the Shareholders and its Affiliates requested to be included in such Demand Registration (or such lesser number of Registrable Securities which is equal to the number which, in the opinion of the managing underwriter, can be sold) and (ii) second, any additional number of Registrable Securities which, in the opinion of the managing underwriter, can be sold, such number to be allocated pro rata among all requesting Philips Persons (other than the Shareholder and its Affiliates referred to in clause (i) above) on the basis of the relative number of Registrable Securities then held by each such holder (provided that any shares thereby allocated to any such holder that exceed such holder's request shall be reallocated among the remaining requesting holders of Registrable Securities in like manner). In the event that the number of Registrable Securities requested to be included in such Demand Registration by is less than the Stockholders, number which, in the opinion of the underwriter managing underwriter, can be sold, the Company may include in such Demand Registration such number of securities of the Company to be sold on behalf of the Company as, in the opinion of the managing underwriter, can be sold without adversely affecting a significant adverse effect on the marketability price, timing or distribution of the offeringRegistrable Securities to be offered.
(c) The Company shall be entitled to postpone for a reasonable period of time (not to exceed 120 days, pro rata among which may not thereafter be extended) the filing of any registration statement, listing particulars or other similar documentation otherwise required to be prepared and filed by it pursuant to Section 2(a) hereof if, at the time it receives a request for such Stockholders registration, listing or other qualifications, the Supervisory Board of the Company determines in good faith that such offering will materially interfere with a pending or contemplated financing, merger, sale of assets, recapitalization or other similar corporate action of the Company, in which case the Company shall have furnished to holders of Registrable Securities requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders a Managing Director's Certificate to that are Piggyback Sellers (as defined below)effect; (ii) secondprovided, securities that the Company proposes shall not exercise the right to sell; and (iiipostpone any registration, listing or other qualification pursuant to this Section 2(c) third, all other securities more than once in any 12 month period. After such period of postponement the Company duly requested shall effect such registration, listing or other qualification as promptly as practicable without further request from the holders of Registrable Securities, unless such request has been withdrawn.
(d) Notwithstanding the foregoing, the Company shall not be obligated to be included in such file a registration statement, pro rata on listing particulars or similar document at the basis request of any Philips Person if the number Company and such Philips Person shall have received an opinion of counsel reasonably satisfactory in form and substance to such Philips Person and the Company to the effect that (i) the disposition of such Registrable Securities in the manner and upon the same terms and conditions (including pricing terms) proposed by such Philips Person may be effected without registration, listing or other securities requested qualification under statutes, laws, rules and regulations of any governmental authority or self-regulatory organization with authority to supervise or regulate the primary market in which the Company's shares are traded; provided, that the Registrable Securities so disposed of would be included or unrestricted with respect to resale under such other method determined by statutes, laws, rules and regulations in the hands of a transferee who is not an Affiliate of the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Securities Purchase and Conversion Agreement (United International Holdings Inc)
Demand Registration. (a) At any time after Except as provided in Section 2.2(b) below, upon the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Holder, which request shall specify the Registerable Securities so requested to be registered by Holder, the Proposed Amount thereof and the intended method of disposition by Holder, the Company (a “Demand”) for will, as expeditiously as reasonably possible, use its best efforts to effect the registration under the Securities Act of a number the resale of Registrable Securities thatthe Proposed Amount of Registerable Securities, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may request; provided, however that (i) if in the good faith judgment of the Board of Directors of the Company, such registration would be an Underwritten Offering;
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) all other Registrable Securities which the Company shall furnish to the Holder a certificate signed by an executive officer of the Company that the Board of Directors of the Company has been requested made such a determination and that it is, therefore, necessary to register pursuant defer the filing of such registration statement, then the Company shall have the right to Section 6.1(b); and
(iii) all Class A Shares defer such filing for the period during which such registration would be detrimental, provided that the Company may elect not defer the filing for a period of more than 120 days after receipt of the request of the Holder. The Company shall be entitled to register include in connection with any offering registration statement filed pursuant to this Section 2.2: (A) securities of Registrable Securitiesthe Company held by any other security holder of the Company, but subject and (B) in an underwritten public offering, securities of the Company to Section 6.1(f); all be sold by the Company for its own account, except as and to the extent necessary that (x) in the opinion of the managing underwriter (if such method of disposition shall be an underwritten public offering), such inclusion would adversely affect the marketing of the Registerable Securities to be sold by the Holder or (y) in the reasonable opinion of the Holder (if such method of disposition is not an underwritten public offering), such inclusion would adversely affect the price at which such Registerable Securities may be sold pursuant to the plan of distribution; 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 disposition (in accordance with offering of all Registerable Securities requested by the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredHolder without such adverse effects.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to take any action to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights registration requested by the Holder pursuant to Section 6.2 2.2(a) hereof (subject i) after the Company has effected two (2) such registrations pursuant to Section 6.1(f)) this Agreement and provided that at least 50% of the number of Registrable Securities requested by each such Stockholders to be included in such Demand Registration were includedregistration has been declared or ordered effective, (Bii) within ninety for a period of two (902) day of any other Underwritten Offering years after the Company has effected one such registration pursuant to Section 6.3(e). In addition2.2(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 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 has filed a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness with respect thereto by reason of the registration statement relating refusal of Holder 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 proceed shall be deemed to have been effected by the Company of unless 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 Holder shall have the right elected to withdraw such Demand in accordance with Section 6.4.
(f) The pay all 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 Expenses in connection with such Demand Registrationregistration, (ii) advises the Companyif after it has become effective such registration is interfered with by any stop order, in writing, that, in its opinion, the inclusion of all injunction or other order or requirement of the securitiesSEC or other governmental agency or court for any reason other than a misrepresentation or an omission by the Holder, including securities of or (iii) if the Company that are not Registrable Securities, sought conditions to be registered closing specified in the purchase agreement or underwriting agreement entered into in connection with such Demand Registration would adversely affect the marketability registration are not satisfied other than by reason of the Registrable Securities sought to be sold pursuant theretosome wrongful act or omission, then the Company shall include or act or omission 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) firstbad faith, up to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the CompanyHolder.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (General Electric Capital Corp)
Demand Registration. (a) At any time On and after the date end of the Earn Out Period, the Stockholders’ Representative may in his sole and absolute discretion request in a written notice that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date file a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration statement under the Securities Act (or a similar document pursuant to any other statute then in effect corresponding to the Securities Act) covering the registration of any or all Registrable Stock held by the Stockholders; provided, that there must be included in such registration Registrable Stock having a number 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 Shareholders participating in the registration (the “Registration Threshold”); provided, that the Registration Threshold shall be increased to Twenty Million Dollars ($20,000,000) or such 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 ($5,000,000), if the Company is not eligible to register the sale or other disposition of Registrable Securities thaton Form S-3 (or a successor form). Following receipt of any notice under this Section 5.1, when taken together with the number of Registrable Securities requested Company shall use its reasonable efforts to cause to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholdersall Registrable Stock that the Stockholders have requested be registered in a manner of disposition reasonably acceptable to the Company, equals including but not limited to, an offering on a delayed or is greater than continuous basis pursuant to Rule 415 (or any successor rule) under the Securities Act.
(b) If the Company intends to have the Registrable Amount (a “Demand Registration”) and thereupon Stock distributed by means of an underwritten offering the Company will, subject Stockholders shall enter into an underwriting agreement in customary form with the underwriter or underwriters. If any Stockholder who intends to sell Registrable Securities in the offering disapproves of the terms of this Agreementthe underwriting, use such Stockholder may elect to withdraw all its reasonable best efforts to effect Registrable Stock from the registration as promptly as practicable under by written notice to the Securities Act of:Company and the managing underwriter. The underwriters shall be selected by the Company in its sole discretion.
(c) Notwithstanding any provision of this Agreement to the contrary,
(i) the Registrable Securities 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 for the account of the Company or on behalf of the selling stockholders under any other registration rights agreement which the Company has Stockholders have been so requested entitled to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offeringjoin pursuant to Section 5.2;
(ii) all 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, disposition, strategic alliance or financing transaction or other Registrable Securities potential material event involving the Company or (B) to suspend the registration rights set forth herein, the Company may (1) postpone the filing of any registration pursuant to this Section 5.1 and (2) suspend the rights of any Stockholder to make sales pursuant to any registration statement for such a period of time as the Board may determine; provided, that such periods of postponement and suspension may not exceed 120 days in the aggregate during any period of 12 consecutive months; and each Stockholder agrees in consideration of the 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 safe 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 shall extend the period during which such registration statement shall be maintained effective as provided in Section 5.3(a) by the number of days by which the Company has been requested to register pursuant to Section 6.1(b)suspends such registration statement; and
(iii) all Class A Shares which the Company may elect shall not be required to register effect a registration pursuant to this Section 5.1 more than one time in any twelve-month period and shall not be obligated to cause any audit to be undertaken in connection with any offering of Registrable Securities, but subject such registration that the Company is not otherwise required to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition undertake at that time in connection with such Demand Registration, to its obligations under the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a DemandSecurities Act, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f), Exchange Act and 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders rules and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountregulations thereunder.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(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 pay for more than one hundred and twenty (120) days in the aggregatethree registrations pursuant to this Section 5.1; provided, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 requested pursuant to withdraw such Demand in accordance with this Section 6.4.
(f) The Company 5.1 shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent be deemed to have been effected for purposes 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 Registrationthis Section 5.1(d) 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 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 or investment bank can be sold without such adverse effect as follows and in the following order of priority: unless (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration it has been declared effective by the StockholdersCommission, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) secondit has remained effective for the period set forth in Section 5.3(a), securities the Company proposes to sell; and (iii) thirdthe offering of Registrable Stock pursuant to such registration is not subject to any stop order, all injunction or other securities order or requirement of the Company duly requested to be included in Commission (other than any such registration statementstop order, pro rata on the basis injunction, or other requirement of the number Commission prompted by any act or omission of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number holders of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand RegistrationStock).
Appears in 1 contract
Demand Registration. (a) At Upon written notice to the Issuer from one or more Holders at any time after the Shelf Termination Date (but not later than the date that is one hundred and eighty (180) 180 days after the date hereof Shelf Termination Date) (the "Demand Request") requesting that the Issuer effect the registration under the 1933 Act of any or all of the Registrable Securities held by such earlier date 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 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 may collectively exercise their rights to request registration under this Section 2.02(a) on not more than one occasion (such registration being referred to herein as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or "Demand Registration");
(ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on Issuer shall not be required to effect the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of Registration hereunder unless the Company (a “Demand”) for registration under the Securities Act of a aggregate number of Registrable Securities thatto be registered pursuant to the Demand Registration is equal to or more than 3,000,000 shares;
(iii) the 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 required to effect the Demand Registration hereunder if all securities that were Registrable Securities on the date hereof have ceased to be Registrable Securities.
(b) Notwithstanding any other provision of this Agreement to the contrary, a Demand Registration requested by Holders pursuant to this Section 2.02 shall not be deemed to have been 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 has not become effective under the 1933 Act or if such Demand Registration, after it became effective under the 1933 Act, was not maintained effective under the 1933 Act (other than as a result of any stop order, injunction or other order or requirement of the Commission or other government agency or court solely on the account of a material misrepresentation or omission of a Holder) for at least 30 days (or such shorter period ending when taken together with all the number Registrable Securities covered thereby have been disposed of pursuant thereto) and, as a result thereof, the Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition cannot be distributed in accordance with the intended method plan of disposition stated distribution set forth in such the related registration statement. So long as a Demand which may be an Underwritten Offering;
(ii) all other Registrable Securities which Request is made by the Company has been requested Holders within the 180-day period referred to register pursuant to in Section 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(f2.02(a), the Company Holders shall include in not lose their right to their Demand Registration under Section 2.02 if the Demand Registration covered by related to such Demand all Registrable Securities with respect to which Request is delayed or not effected in 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 given. Such written request shall comply with the requirements of a Demand as circumstances set forth in this Section 6.1(bclause (b).
(c) For 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 2.02(a) above; provided that if such Holders are advised in writing (with a copy to the Issuer) by the lead or managing underwriter referred to in Section 2.03(b) that, in such underwriter's good faith view, all or 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 the number of securities that can, in the good faith view of such underwriter, be sold in such offering without so long as adversely affecting such offering shall be allocated pro rata among the Secondary Class B Condition is satisfiedrequesting Holders and the Issuer on the basis of the relative number requested to be included therein by the Issuer and each such Holder (in which case Section 2.02(a)(ii) shall be disregarded for purposes of such Demand Registration); provided that in the event such a pro rata allocation shall be made in connection with the Demand Request, Holdings the remaining Holders shall be entitled to an unlimited number request one additional Demand Registration (without needing to make a Demand Request therefor within the 180-day period referred to in Section 2.02(a) and disregarding Section 2.02(a)(ii) for purposes of such additional Demand Registrations until Registration); provided further that in conection with such time additional Demand Registration, if any, the Issuer may not include additional 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 such additional equity securities be included by the Issuer in the offering proposed by such Holders on the same conditions as the Stockholders and their Permitted Transferees who Registrable Securities that are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amountincluded therein.
(d) Within 7 days after delivery of a Demand Registrations Request by a Holder, the Issuer shall be on provide a written notice to each Holder (or, if so requested by the Issuer after appropriate notice to the Zell ▇▇▇ders' Agent by the Issuer, the Zell ▇▇▇ders' Agent shall provide written notice to each Zell ▇▇▇▇▇▇), ▇dvising such registration form Holder of its right to include any or all of the SEC Registrable Securities held by such Holder for which the Company is eligible as shall be selected by the Requesting Stockholders, including, sale pursuant to the extent permissibleDemand Registration and advising such Holder of procedures to enable such Holder to elect to so include Registrable Securities for sale in the Demand Registration. Any Holder may, an automatically effective registration statement or an existing effective registration statement filed within 7 days of delivery to such Holder of a notice pursuant to this Section 2.02(d), elect to so include Registrable Securities in the Demand Registration by the Company with the SEC, and shall be reasonably acceptable written notice to such effect to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of Issuer specifying the number of Registrable Securities requested desired to be so included by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4Holder.
(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 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At Subject to the provisions hereof, at any time on or after the date that is one hundred Initial Closing Date, the Purchaser and eighty any assignee of the Purchaser pursuant to Section 10.6 of this Agreement (180each a “Holder”) days after shall have the date hereof (or such earlier date (i) as would permit right to require the Company to cause any filings required hereunder file a Registration Statement registering for sale all or part of the Conversion Shares held by or issuable to them (including Conversion Shares that may be filed on issued in respect of PIK Interest) (collectively, the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting StockholderRegistrable Securities”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (ii) specifying whether the intended method of disposition thereof is pursuant to an Underwritten 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 terms receipt of this Agreementsuch demand, the Company shall (x) promptly notify any Holders from whom the request for registration has not been received and (y) use its commercially reasonable best efforts to effect the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register by register; provided, however, that (i) the Requesting Stockholders Holders shall not make a request for disposition in accordance with the intended method a Demand Registration under this Section 8.1(a) for Registrable Securities having an anticipated aggregate offering price of disposition stated in such Demand which may be an Underwritten Offering;
less than $5,000,000, (ii) all other Registrable Securities which the Holders will not be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect more than three (3) Demand Registrations in the aggregate under this Agreement, and (iii) all Class A Shares which the Company may elect will not be obligated to register effect more than one (1) Demand Registration in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition six (in accordance with the intended methods thereof6) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredmonth period.
(b) A The offering of the Registrable Securities pursuant to such Demand shall specify: Registration may be in the form of an Underwritten Offering. In such case, (i) the aggregate number Holders of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 to be sold in the Underwritten Offering may designate the managing underwriter(s) of the Underwritten 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; 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 Demand Registration. 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.
(c) If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not in the form of an Underwritten Offering, a nationally recognized investment bank engaged the managing underwriter(s) give written advice to the Company of an Underwriters’ Maximum Number, then (i) the Company shall so advise all Holders of Registrable Securities to be included in connection with such Demand RegistrationUnderwritten Offering and (ii) advises the Company, Company will be obligated and required to include in writing, that, such Underwritten Offering that number of Registrable Securities requested by the Holders thereof to be included in its opinion, such registration and that does not exceed such Underwriters’ Maximum Number prior to the inclusion of all of the securities, including other securities of the Company that are not Registrable Securities, sought have been requested to be registered in connection with so included by any other person, and such Demand Registration would adversely affect the marketability of the Registrable Securities sought to shall be sold pursuant thereto, then allocated pro rata among the Company shall include in such registration statement only such securities as Holders thereof on the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order basis of priority: (i) first, up to the number of Registrable Securities requested to be included in therein by each such Holder.
(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 StockholdersSEC, which, in the opinion at least 75% of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by 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 securities of the Company duly Registrable Securities requested to be included in the registration by the Holders are included in such registration statementregistration, pro rata on and the basis 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 number SEC or any other governmental or administrative agency, or if any court prevents or otherwise limits the sale of such other securities requested the Registrable Securities pursuant to be included or such other method determined the registration, and in each case less than all of the Registrable Securities covered by the Company.
effective Registration Statement are actually sold by the selling Holder or Holders pursuant to the Registration Statement, or (gii) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration orif, if such Demand Registration is not in the case of an Underwritten Offering, any investment bank engaged in connection therewiththe Company fails to provide full cooperation, shall then such registration will be selected deemed not to have been effected for purposes of clause (ii) of the proviso to Section 8.1(a). If (i) by Holdings, for so long a registration requested pursuant to this Section 8.1 is deemed not to have been effected as the Secondary Class B Condition is satisfied, and thereafter a Demand Registration or (ii) the registration requested pursuant to this Section 8.1 does not remain continuously effective until the completion of the distribution by the Stockholder participating in Holders of the Registrable Securities covered by such registration, then the Company shall continue to be obligated to effect a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number pursuant to this Section 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 8.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration constituting a plurality at any time prior to the commencement of all Registrable Securities included in 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 8.1(a).
Appears in 1 contract
Demand Registration. (a) At any time Subject to the provisions hereof, after the date that is one hundred Restricted Term, the Investor and eighty any Permitted Transferee of the Investor (180each a “Holder”) days after holding, collectively, a majority of the date hereof (or such earlier date (i) as would permit Registrable Securities then outstanding shall have the right to require the Company to cause any filings required hereunder file a Registration Statement registering for sale all or part of the Shares held by or issuable to be filed on them (collectively, the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting StockholderRegistrable Securities”) shall be entitled to make a written request of the Company (a “Demand”) for 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon by delivering a written request therefor to the Company will(i) specifying the number of Registrable Securities to be included in such registration by such Holder or Holders, subject (ii) specifying whether the intended method of disposition thereof is pursuant to an underwritten public offering of Ordinary Shares by the terms of this AgreementCompany (an “Underwritten Offering”), and (iii) containing all information about such Holder required to be included in such Registration Statement in accordance with applicable Law. The Company shall use its commercially reasonable best efforts to effect the such registration as promptly as practicable (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:
(iand any other governmental requirements or regulations) of the Registrable Securities which that the Company has been so requested to register as soon as practicable (and in any case by the Requesting Stockholders applicable Filing Date); provided, however, that the Holders shall not make a request for disposition in accordance with the intended method of disposition stated in such a Demand which may be an Underwritten Offering;
(iiRegistration under this Section 2.1(a) all other for Registrable Securities which having an anticipated aggregate offering price of less than $25,000,000. The Holders shall be entitled to require the Company has been requested to register pursuant to Section 6.1(b); and
effect two (iii2) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registeredDemand Registrations under this Agreement.
(b) A If the offering of the Registrable Securities pursuant to such Demand shall specify: Registration is an Underwritten Offering, (i) the Company shall select the underwriter(s) of the Underwritten Offering, subject to the approval of the Holders of a majority of the Registrable Securities to be sold in the Underwritten Offering, such approval not to be unreasonably withheld, conditioned 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 by a selling holder of equity securities with the managing underwriter(s) proposing to distribute their securities through such Underwritten Offering; 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.
(c) If, in connection with a Demand Registration in the form of an Underwritten Offering, the managing underwriter(s) give written advice to the Company of the number of securities to which such registration 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) so advise all Holders of Registrable Securities to be included in such Underwritten Offering and (ii) include in such registration the number of securities requested to be included in such registration by all Holders of Registrable Securities to be included in such Underwritten Offering, pro rata on the basis of the aggregate number of Registrable Securities requested to be registered included by each such Holder, and, subject to the conditions set forth in such Demand RegistrationSection 2.8 hereto, on a pari passu basis with the holders of contractual registration rights provided under (i) the Investor Agreement, dated as of April 2, 2018, by and between the Company and Takeda Pharmaceutical Company Limited (the “Takeda Holders”) and (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known Share Purchase Agreement by and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, between the Company shall give written notice and C.P. Pharmaceuticals International C.V. dated as of such Demand to all other Stockholders. Subject to Section 6.1(fMay 6, 2016 (the “Pfizer Holders”), 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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) A registration will not be deemed to have been effected as a Demand Registrations shall 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 on included in the registration by the Holders are included in such registration form 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 (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 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, then such registration will be deemed not to have been effected for which purposes of the last sentence of Section 2.1(a). If (i) a registration requested pursuant to this Section 2.1 is deemed not to have been effected as a Demand Registration or (ii) the registration requested pursuant to this Section 2.1 does not remain continuously effective until the completion of the distribution by the Holders of the Registrable Securities covered by such registration, then the Company is eligible as shall be selected by the Requesting Stockholders, including, continue to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any a Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to this Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 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 2.1(d), each Holder of Registrable Securities shall be permitted voluntarily to withdraw all or any part of its Registrable Securities from a Demand Registration. If, in connection with a Registration at any time prior to the commencement of marketing of such Demand Registration, any managing underwriter (or, if provided that such registration nonetheless shall count as a 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 for purposes of the securities, including securities last sentence of the 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 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 in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined belowSection 2.1(a); (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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.
Appears in 1 contract
Demand Registration. (a) At Subject to Article III, at any time after the date that is one hundred and eighty six (1806) days month anniversary of the Company’s initial Public Offering after the date hereof (or such earlier date Effective Date, (i) as would permit any Holder of at least 10% of the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof Registrable Securities then outstanding or (ii) the 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 permitted by waiver being made pursuant to this Section 2.01(a) and the intended method or methods of disposition thereof) that the Company file a registration statement (or corresponding successor document) under the IPO Underwriting Agreement)Securities Act, any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders of all or part of its or their Registrable Securities (a “Requesting StockholderDemand Registration”) ). Thereafter, the Company shall be entitled to make a written request promptly notify all other Holders in writing of the receipt of such request, and each such Holder in lieu of exercising its rights under Section 2.02 may elect (by written notice sent to the Company within ten (a “Demand”10) for Business Days from the date 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 efforts to effect the registration under the Securities Act of a number all shares 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 Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders such Holders 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 6.1(b); and
(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securitiessale, but subject to Section 6.1(f); all to the extent necessary required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities and so registered; provided, however, that the additional Class A Shares, if any, Company shall not be required to effect a registration of Registrable Securities on a Form S-1 or other “long-form” registration pursuant to this Section 2.01(a) unless the Registrable Securities requested by all Holders to be registered have an anticipated aggregate public offering price (before any underwriting discounts and commissions) of not less than Fifteen Million Dollars ($15,000,000); and further provided, however, the Company shall not be required to effect more than two (2) registrations on Form S-1 or other “long form” registration of any 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 registeredlong as the anticipated aggregate public offering price (before any underwriting discounts and commissions) of the Registrable Securities to be 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 registration shall be borne by the Company.
(b) A registration will not count as a Demand shall specify: Registration until the applicable registration statement has become effective (i) unless the aggregate number requesting Holder withdraws all of its Registrable Securities requested to be registered and the Company has performed its obligations hereunder in all material respects, in which case such demand will count as a Demand Registration, (ii) Registration unless the intended method of disposition requesting Holder pays all registration expenses in connection with such Demand Registrationwithdrawn registration); provided, however, that if, after it has become effective, an offering of Registrable Securities pursuant to the extent then known and a registration is either (iiii) the identity interfered with by any stop order, injunction or other order or action of the Requesting Stockholder Commission or other governmental agency or court (or Requesting Stockholders). Within five (5) days after receipt other than because of a Demandviolation of applicable law by a Holder) or (y) withdrawn because of any development affecting the Company, the Company shall give written notice of in either case before being in effect for more than 90 days, then such Demand registration will be deemed not to all other Stockholders. Subject to Section 6.1(f), the Company shall include in the have been effected and will not count as a Demand Registration covered by such Demand all unless at least ninety percent (90%) of the Registrable Securities 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 included thereon have been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b)sold or otherwise disposed of.
(c) For so long as If the Secondary Class B Condition is satisfied, Holdings managing underwriter of a Demand Registration shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which advise the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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, 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 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 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 in such the Demand Registration by would materially and adversely affect the Stockholders, which, in the opinion distribution of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number a smaller amount of such securities held by Registrable Securities, then all selling Holders shall reduce the amount of Registrable Securities each intended to distribute through such Stockholders and offering on a pro-rata basis such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested Registrable Securities to be included in such registration statement, pro rata on the basis of the number of such other securities requested to Demand Registration shall be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect reduced to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registrationsmaller amount.
Appears in 1 contract
Sources: Restructuring Agreement (Ener1 Inc)
Demand Registration. (a) At The DLJ Entities may at any time after the date that is one hundred and eighty (180) days after the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of (such requesting DLJ Entity, a "SELLING STOCKHOLDER") that the Company (a “Demand”) for Issuer effect the registration under the Securities Act of all or a number portion of such Selling Stockholder's Registrable Securities thatStock, when taken together with and specifying the number intended method of Registrable Securities disposition thereof. The Issuer will promptly give written notice of such requested to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount registration (a “"DEMAND REGISTRATION") at least 30 days prior to the anticipated filing date of the registration statement relating to such Demand Registration”) Registration to the Other Stockholders and thereupon the Company will, subject to the terms of this Agreement, will use its reasonable best efforts to effect effect, as expeditiously as possible, the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities Stock then held by the Selling Stockholders which the Company Issuer has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;Selling Stockholders; and
(ii) subject to Section 4.2, all other Registrable Securities Stock which any Other Stockholder entitled to request the Company has been requested Issuer to register effect an Incidental Registration (as such term is defined in Section 4.2) pursuant to Section 6.1(b); and
4.2 (iiiall such Stockholders, together with the Selling Stockholders, the "HOLDERS") all Class A Shares which has requested the Company may elect Issuer to register in connection with any offering by written request received by the Issuer within 15 days after the receipt by such Holders of Registrable Securitiessuch written notice given by the Issuer, but subject to Section 6.1(f); all to the extent necessary to permit the disposition (in accordance with the intended methods thereofthereof as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, Stock so to be so registered.
(b; provided that, subject to Section 4.1(c) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demandhereof, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company Issuer shall not be obligated to effect more than three Demand Registrations for the DLJ Entities collectively pursuant to this Section 4.1 other than any such Demand Registrations effected on Form S-3; and provided further that the Issuer shall not be obligated to effect a Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 6.4.
(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 unless 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 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 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 Stock requested to be included in such Demand Registration by constitutes at least 25% of the StockholdersCommon Stock then outstanding or to be issued upon conversion of the Preferred Stock. In no event will the Issuer be required to effect more than two Demand Registrations on Form S-3 within any 12 month period. Promptly after the expiration of the 15-day period referred to in Section 4.1(a)(ii) hereof, which, the Issuer will notify all of the Holders to be included in the opinion Demand Registration of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of other Holders and the number of such securities held by 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 securities shares of the Company duly Registrable Stock requested to be included in such therein. The Selling Stockholders requesting a registration statementunder this Section 4.1(a) may, pro rata on at any time prior to the basis effective date of the number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect registration statement relating to such Demand Registration orregistration, if revoke such Demand Registration is not an Underwritten Offeringrequest, without liability to any investment bank engaged of the other Holders, by providing a written notice to the Issuer revoking such request, in connection therewithwhich case such request, so revoked, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such considered a Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number unless such revocation arose out of Registrable Securities included the fault of the Issuer, in which case such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.request shall not be
Appears in 1 contract
Demand Registration. (a) At any time after the earlier of (i) five (5) years after the Closing Date and (ii) one hundred eighty (180) days after the effective date of the registration statement for an IPO, upon receipt of a written request from any Designated Holder, requesting that is the Company effect a registration (a “Demand Registration”) 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 for a Demand Registration, give written notice thereof (the “Demand Notice”) to 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 the date hereof (or such earlier date (i) as 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 under the IPO Underwriting Agreement), any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make receipt of a written request of the Company (for a “Demand”) for registration under the Securities Act of a number of Registrable Securities thatDemand Registration, when taken together file with the number of Registrable Securities requested SEC and use its best efforts to cause to be registered under the Securities Act by such Requesting Stockholder’s Permitted Transferees who are Stockholders, equals or is greater than the Registrable Amount declared effective a registration statement (a “Demand RegistrationRegistration Statement”) and thereupon the Company will, subject relating to the terms all shares of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders such Designated Holder for disposition in accordance sale, together with the intended method of disposition stated any additional Registrable Securities requested to be included in such Demand which may be an Underwritten Offering;
(ii) all registration by any other holders of Registrable Securities which (each, a “Participating Demand Holder”), as specified by notice given by each such Participating Demand Holder to the Company has been requested to register pursuant to Section 6.1(b); and
within twenty (iii20) all Class A Shares which days of the Company may elect to register in connection with any offering of Registrable Securities, date the Demand Notice is given (but subject to Section 6.1(fparagraphs 1(b) and 2(c) below); all , to the extent necessary required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five (5) days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 6.1(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 ten (10) days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 6.1(b).
(c) For so long as the Secondary Class B Condition is satisfied, Holdings The public offering shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders and their Permitted Transferees who are Stockholders, together, Beneficially Own less than underwritten with a Registrable Amount. After the Secondary Class B Condition ceases to be satisfied, each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder and its Permitted Transferees who are Stockholders, together, Beneficially Own 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 managing underwriter selected by the Requesting Stockholders, including, Company and reasonably satisfactory to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Participating Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 6.2 (subject to Section 6.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included, (B) within ninety (90) day of any other Underwritten Offering pursuant to Section 6.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company 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 Holders holding a majority of Registrable Securities held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 6.4.
(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 interest of the Registrable Securities included in (the “Managing Underwriter”) (provided that the Participating Demand Holders shall not unreasonably refuse the selection of the Company) and if such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if Managing Underwriter of such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, Company in writing, writing that, in its opinion, the inclusion number of all of the securities, including securities of the Company that are not Registrable Securities, sought Securities to be registered included in connection with such Demand Registration would adversely affect 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 the Registrable Securities sought to be sold pursuant theretoSecurities”), then the Company shall include in such registration statement only such securities as Demand Registration 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 that the Participating Demand Holders have requested to be included in such Demand Registration by registered thereunder only to the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of extent the number of such securities held by Registrable Securities does not exceed the Maximum Number of Securities. If such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) secondamount exceeds the Maximum Number of Securities, 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 number of such other securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by Holdings, for so long as the Secondary Class B Condition is satisfied, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees who are Stockholders) a number of Registrable Securities included in such Demand Registration constituting shall be allocated among all the Participating Demand Holders on a plurality pro rata basis (based on the number of all 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 may include in such Demand Registration any other Securities of the Company and other Securities held by other security holders of the Company, as the Company may in its discretion determine or be obligated to allow, in an amount which together with the Registrable Securities included in such Demand RegistrationRegistration 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 Designated Holder has requested to be registered. To facilitate the allocation of shares in accordance with the above provisions, the 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, a registration shall not be counted as “effected” if, as a result of an exercise of the Managing Underwriter’s cutback provisions in paragraph 1(b), fewer than fifty percent (50%) of the total number of Registrable Securities that Designated Holders have requested to be included in such registration statement are actually included.
(c) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this paragraph 1, (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected three (3) registrations pursuant to this paragraph 1. A registration shall not be counted as “effected” for purposes of this paragraph 1(c) until such time as the applicable registration statement has been declared effective by the SEC.
(d) Notwithstanding anything to the contrary, Form F-3 or Form S-3 registrations shall not be deemed to be 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 of Registrable Securities on Form F-3 or Form S-3; provided that the Designated Holders shall not request for more than twice within a Financial Year.
Appears in 1 contract
Sources: Series a Preferred Stock Subscription Agreement (I-Mab)