Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement of the Company is declared effective by the Commission under the Securities Act, a Stockholder or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register. (b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration. (c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register. (d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded. (e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering. (f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed. (g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting. (h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Development Collaboration and License Agreement (GenMark Diagnostics, Inc.)
Demand Registrations. (a) 2.1. At any time, and from time commencing one year to time, after Wendy's shall have filed with the date the initial Registration Statement of the Company is declared effective by the Commission under the Securities Act, a Stockholder or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for SEC financial statements including at least the number 30 days of shares combined operating results of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceedsWendy's and Newco, upon registrationwritten request of Shareholder or his legal representatives, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company Wendy's shall use its best efforts to file with the SEC as promptly to effect the registration, on Form S-1 or Form S-2 as practicable (or and in any successor form), of all Registrable Shares which the Company has been requested to so register.
(bevent within 90 days after receiving such request) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of statement under the 1933 Act covering the Registrable Shares Securities included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c)request, and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company Wendy's shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effectiveeffective as expeditiously as practicable; provided, however, that if Wendy's, in its sole good faith judgment, determines that filing or maintaining the effectiveness of a registration statement covering Registrable Securities (or any disclosure which may be reasonably required to be contained therein) is reasonably likely to materially interfere with any financing, acquisition, corporate reorganization, merger or other transaction, or (ii) is engaged in require premature disclosure of any other activity whichmaterial circumstance, in relating to Wendy's, Wendy's may postpone such filing or terminate the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), effectiveness thereof for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request exceed 135 days. Wendy's shall not be obligated (i) to be exercised by the Company not file more than once per eight registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering statements pursuant to this Section 2, the Company agrees (ii) to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, file more than one registration statement (including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders statement filed by Wendy's other than pursuant to this Section 2) during any consecutive 180-day period, or (iii) to file a registration statement covering Registrable Securities in an amount representing less than 7.5% of the Initiating Holders total number of Wendy's Common Shares which are exchangeable for the total number of Newco Exchangeable Shares purchased by Shareholder under the Purchase Agreement (as hereinafter defined) shall have adjusted to give effect to any subsequent changes in the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayedWendy's Common Shares).
(g) If the Stockholders initiating the registration under 2.2. Any request by Shareholder or his legal representatives pursuant to this Section 2 shall (the “Initiating Holders”1) intend express Shareholder's present intent to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require offer a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate specified number of Registrable Securities for distribution; (2) describe in reasonable detail the nature or method of the proposed offer and sale thereof; and (3) contain an undertaking to furnish all such information and materials and take all such action as may be required in order to permit Wendy's to comply with all applicable requirements of the SEC, to obtain acceleration of the effective date of the registration statement and to comply with all reasonable requests of the underwriters, if any.
2.3. Shareholder agrees that, prior to any sale of its Registrable Securities pursuant to a registration statement, he will have exchanged Newco Exchangeable Shares requested for Wendy's Common Shares in an amount necessary to effect such sale.
2.4. If an offering pursuant to this Section 2 shall be effected through underwriters, the managing underwriters therefor shall be jointly selected by Wendy's and Shareholder. Such underwriters shall agree to be included in such registration bound by the participating Stockholders (or in any such other proportion as agreed upon by provisions of Section 5.6(b) of the participating Stockholders)Share Exchange Agreement.
2.5. Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting Wendy's shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in required to effect a registration pursuant to this AgreementSection 2 if at the time Wendy's receives Shareholder's request to effect a registration, Wendy's is not eligible to use Form S-3 or any successor form thereto.
Appears in 1 contract
Demand Registrations. (a) At Subject to Section 5.3, at any time commencing one year after prior to the date the initial Registration Statement first anniversary of the Closing or following the twenty-month anniversary of the Closing, Parent, on behalf of the Shareholder Group, may, on not more than twelve (12) separate occasions in the aggregate and not more frequently than once during any nine-month period, require the Company is declared effective by the Commission to file a registration statement under the Securities Act, Act in respect of all or a Stockholder or Stockholders holding in the aggregate not less than a majority portion of the Registrable Shares (so long as such request covers Registrable Shares with a Market Value on the date of the Demand Request of at least $300 million if the aggregate Market Value of all Registrable Shares on such date is at least $300 million or, if such Market Value is less than $300 million, so long as such request covers all Registrable Shares), may request, in writing, that by delivering to the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least written notice stating that such right is being exercised, specifying the number of shares of Common Stock issued or issuable upon conversion of to be included in such registration (the Preferred Stock as are reasonably likely shares subject to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice "Demand Shares") and describing the intended method of such proposed registration distribution thereof, which may include an underwritten offering (a "Demand Request"). Subject to all Stockholders. Each such Stockholder shall have the rightSection 5.7, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereuponupon receiving a Demand Request, the Company shall (i) use its reasonable best efforts to file as promptly to effect the registration, as reasonably practicable a registration statement on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which such form as the Company has been requested may reasonably deem appropriate (provided that the Company shall not be obligated to so registerregister any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) providing for the registration of the sale of such Demand Shares pursuant to the intended method of distribution (a "Demand Registration") and (ii) after the filing of an initial version of the registration statement, use reasonable best efforts to cause such registration statement to be declared effective under the Securities Act as promptly as practicable after the date of filing of such registration statement.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period Notwithstanding anything in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due this Agreement to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In additioncontrary, the Company shall not be required entitled to effect postpone and delay, for reasonable periods of time, but in no event more than an aggregate of 60 days during any registration 12-month period (a "Blackout Period"), the filing or effectiveness of any Demand Registration if the Company shall determine that any such filing or the offering of any Registrable Shares would (i) in the good faith judgment of the Board, impede, delay or otherwise interfere with any pending or contemplated material acquisition, corporate reorganization or other similar material transaction involving the Company, (ii) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Company or (iii) in the good faith judgment of the Board, require disclosure of material non-public information (other than on Form S-3 or any successor form information relating to secondary offeringsan event described in clauses (i) within six months of or (ii) above) which, if disclosed at such time, would be harmful to the effective date of any other Registration Statement best interests of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Sharesits stockholders; provided, however, that the Company shall not be obligated give written notice to effect more than two registrations on Form S-3 pursuant Parent of its determination to this Section 2(c)postpone or delay the filing of any Demand Registration; and provided, and further provided further, that in the event that the Company proposes to register Common Stock, whether or not for sale for its own account, during a Blackout Period, the Shareholder Group shall not be obligated have the right to effect more than one registration exercise its rights under Section 5.2 of this Agreement with respect to such registration, subject to the limitations contained in this Agreement on Form S-3 pursuant to this Section 2(c) in any six month periodthe exercise of such rights. Upon receipt notice by the Company to Parent of any such requestdetermination, the members of the Shareholder Group shall keep the fact of any such notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Common Stock for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration, each prospectus included therein, and any amendment or supplement thereto by it for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, will deliver to the Company any copies then in its possession of the prospectus covering such Registrable Shares.
(c) In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in good faith shall have advised the Company or Parent that, in its opinion, the number of Demand Shares subject to a Demand Request exceeds the number which can be sold in such offering, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included include in such registration the number of Demand Shares that, in the opinion of such of his managing underwriter or its Registrable Shares as such Stockholders may request underwriters, can be sold in such notice offering; provided that if as a result of election. Thereuponany reduction pursuant to this paragraph (c) the aggregate Market Value of the Demand Shares to be so included is less than $300 million, the Company Shareholder Group may withdraw such Demand Request with respect to all Demand Shares covered thereby and such registration shall use its best efforts promptly not count for the purposes of determining the number of Demand Registrations to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to registerShareholder Group is entitled under Section 5.1(a).
(d) If at the time of In connection with any request to register Registrable Shares pursuant to this Section 2underwritten offering, the Company (i) has in good faithmanaging underwriter for such Demand Registration shall be selected by Parent, fixed plans provided that such managing underwriter shall be a nationally recognized investment banking firm and shall be reasonably accept- able to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors. The Company may, would be adversely affected by the requested registration, then the Company may at its option, provided select a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished nationally recognized investment banking firm reasonably acceptable to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right Parent to delay a request to be exercised by the Company not more than once per registration demandedact as co-managing underwriter.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement Nothing in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations Article V shall affect or supersede any of the issuer transfer restrictions set forth in Article IV hereof or any of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary other provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Stockholders Agreement (Diageo PLC)
Demand Registrations. (a) At If, at any time commencing after one year after a Qualified Initial Public Offering, and subject to Section 10.5, (i) a Limited Partner or any Affiliate of such Limited Partner (including for purposes of this Section 10.1, any Person that is an Affiliate of a Limited Partner at the date the initial Registration Statement hereof notwithstanding that it may later cease to be an Affiliate of such Limited Partner) holds Limited Partnership Interests that it desires to sell and (ii) Rule 144 of the Company Securities Act (or any successor rule or regulation to Rule 144) or another exemption from registration is declared effective by not available to enable such holder of Limited Partnership Interests (each, a “Holder”) to dispose of the Commission number of Limited Partnership Interests it desires to sell without registration under the Securities Act, then at the option and upon the request of the Holder, the Partnership shall file with the Commission as promptly as practicable after receiving such request, and use all commercially reasonable efforts to cause to become effective and remain effective for a Stockholder or Stockholders holding in the aggregate period of not less than 180 days following its effective date or such shorter period as shall terminate when all Limited Partnership Interests covered by such registration statement have been sold, a majority registration statement under the Securities Act registering the offering and sale of the Registrable Sharesnumber of Limited Partnership Interests specified by the Holder (including Limited Partnership Interests eligible to be sold pursuant to Rule 144); provided, may request, in writinghowever, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company Partnership shall not be required to effect more than two registrations pursuant to Section 10.1 and Section 10.2 at the request of Adena or more than one registration pursuant to subsection Section 10.1 and Section 10.2 at the request of each of Western Pocahontas and Great Northern; provided further, however, that if the General Partner determines that the requested registration would be materially detrimental to the Partnership and its Partners because such registration would (ax) abovematerially interfere with a significant acquisition, reorganization or other similar transaction involving the Partnership, (y) require premature disclosure of material information that the Partnership has a bona fide business purpose for preserving as confidential or (z) render the Partnership unable to comply with requirements under applicable securities laws, then the Partnership shall have the right to postpone such requested registration for a period of not more than three months after receipt of the Holder’s request, such right pursuant to this Section 10.1 and Section 10.2 not to be utilized more than twice in any twelve-month period. At the Partnership’s election, the Partnership may satisfy its obligations under this Section 10.1 with a “shelf” registration statement on an appropriate form under Rule 415 under the Securities Act or any similar rule that may be adopted by the Commission. Except as provided in the first sentence of this Section 10.1, the Partnership shall be deemed not to have used all commercially reasonable efforts to keep the registration statement effective during the applicable period if it voluntarily takes any action that would result in Holders of Limited Partnership Interests covered thereby not being able to offer and sell such Limited Partnership Interests at any time during such period, unless such action is required by applicable law. In connection with any registration pursuant to the first sentence of this Section 10.1, the Partnership shall (i) promptly prepare and file (A) such documents as may be necessary to register or qualify the securities subject to such registration under the securities laws of such states as the Holder shall reasonably request; provided, however, that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business as a foreign corporation or partnership doing business in such jurisdiction solely as a result of such registration, and (B) such documents as may be necessary to apply for listing or to list the Limited Partnership Interests subject to such registration on such national securities exchange or national quotation system on which the Limited Partnership Interests are listed or quoted for trading as such Holder shall reasonably request, and (ii) do any and all other acts and things that may be necessary or appropriate to enable the Holder to consummate a public sale of such Limited Partnership Interests in such states. Except as set forth in Section 5 hereof10.4, a all expenses incurred in connection with one and only one registration must and offering demanded by Adena pursuant to this Section 10.1 or Section 10.2 (other than the underwriters’ and brokers’ discounts and commissions and fees and disbursements of counsel for the Holders), including without limitation all federal and “blue sky” registration, filing and qualification fees, printer’s and accounting fees, reasonable fees and expenses of counsel to the Partnership (selected by the General Partner) and reasonable road show expenses (including aircraft charter fees (if any) and other travel expenses), shall be declared effective paid by the Partnership, without reimbursement by the Holders, it being understood and remain effective for at least 120 days (agreed that thereafter all expenses incurred in connection with any other registration and offering demanded pursuant to this Section 10.1 or such shorter period in which all of the Registrable Shares Section 10.2, including without limitation underwriters’ and brokers’ discounts and commissions relating to Limited Partnership Interests included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided furtherby each Holder participating in such offering, that if after any all federal and “blue sky” registration, filing and qualification fees, printer’s and accounting fees, fees and expenses of counsel for such registration made pursuant to subsection (a) above becomes effectiveHolders, such registration is interfered with by any stop order, injunction or other order or requirement reasonable fees and expenses of the Commission or other governmental agency or court solely due one counsel to the actions or omissions to act of Partnership (selected by the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(cGeneral Partner), and further provided that reasonable road show expenses (including aircraft charter fees (if any) and other travel expenses), shall be borne by the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholdersparticipating Holders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included Holder participating in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations 10.1 and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares each Holder participating in such registration and offering pursuant to Section 10.3 shall be conditioned upon bear such StockholderHolder’s participation in such underwriting and proportionate share (based on the inclusion total amount of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be Limited Partnership Interests included in such registration registration) of all expenses payable by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwritingHolders.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Natural Resource Partners Lp)
Demand Registrations. (ai) At any time commencing one year after the date earlier of (x) the initial Registration Statement third anniversary of the Company is declared effective Closing Date or (y) six (6) months after the consummation by the Commission Company of an initial public offering of its common stock pursuant to an effective registration statement under the Securities Act, a Stockholder any Holder or Stockholders holding in the aggregate not less than a majority Holders of the Registrable Shares, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder Securities shall have the rightright to elect, by giving written notice thereof to the Company within 20 days after such Stockholder receives his or its noticeCompany, to elect require the Company to have included in such registration such use its reasonable best efforts to register all or a portion of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, Securities under the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) aboveSecurities Act; provided, however, that subject the Company shall be obligated to Section 5 hereofregister the Registrable Securities upon such election only if the Registrable Securities to be registered are of a class of securities registered under the Exchange Act and, a registration must be declared effective and remain effective for at least 120 days (in the aggregate, constitute 20% or such shorter period in which all more of the then-outstanding Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunderSecurities; provided provided, further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement rights will expire on the fifth anniversary of the Commission or other governmental agency or court solely due to date on which the actions or omissions to act Company successfully consummates an initial public offering of the Company, its Common Stock. Promptly following such registration shall not be considered a demand for registration hereunder. In additionelection, the Company shall not (1) give notice to each other Holder of Registrable Securities of such election, which notice shall set forth the identity of the electing Holders, and (2) use its reasonable best efforts to cause to be declared or become effective under the Securities Act a registration statement providing for the registration of, and the sale in accordance with the intended method or methods of distribution thereof by the electing Holders of, the Registrable Securities elected to be included therein by the Holder. The Company shall be required to effect any cause to become effective pursuant to this Section 2(a) no more than two registration (other than statements in the aggregate unless the Company is eligible to register the Registrable Securities on Form S-3 or any successor form relating to secondary offerings) within six months of under the effective date of any other Registration Statement of the Company Securities Act, in which case the Stockholders Holders shall have been entitled the unlimited right to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement require registrations on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable SharesS-3; provided, however, that the Company shall not be obligated to effect more than any such registration on Form S-3 if the Company has within the twelve (12) month period preceding the date of such request for registration already effected two (2) registrations on Form S-3 pursuant to this Section 2(c)(or applicable successor form) at the request of Holders. Notwithstanding the foregoing, and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 register Registrable Securities upon any election pursuant to this Section 2(c2(a)(i) if fewer than 180 days have elapsed after the effective date of a registration statement registering newly issued or treasury shares of the Company's common stock for purposes of a primary offering (as defined in any six month period. Upon receipt of Section 2(b)(i) hereof) on a firm commitment underwritten basis, but only if and to the extent that (x) the underwriting agreement entered into in connection with any such requestoffering expressly prohibited registration of Registrable Securities upon such election and (y) no period referred to in this sentence, and no postponement referred to in Section 2(a)(ii) hereof, was in effect during the Company shall promptly give written notice 12 months immediately preceding the commencement of such proposed registration to all Stockholders. Each such Stockholder 180 day period, unless any Holders having made elections during the previous period or postponement, as the case may be, shall have had the right, by giving written notice opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the Company within 20 days after current such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to registerperiod.
(dii) If at In the time of event that, following any request to register Registrable Shares election pursuant to this Section 22(a)(i) hereof but prior to the filing of a registration statement in respect of such election, (A) the Company (i) has Board of Directors of the Company, in its reasonable judgment and in good faith, fixed plans to file, within 90 days resolves that the filing of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effectiveand the offering of Registrable Securities pursuant thereto would materially interfere with any significant acquisition, corporate reorganization or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to similar transaction involving the Company, and (B) the Company furnishes to the Holders having made such election a certificate signed by the President of the Company giving notice of such determination (which certificate shall include a copy of such information in the written notice to the other Stockholders. In such eventresolution), the right Company shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to postpone for up to 90 days the filing of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares statement otherwise required to be underwrittenprepared and filed by it pursuant to Section 2(a)(i) hereof; provided, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant heretohowever, and the number of shares of Registrable Shares that no such postponement may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership effected if any other postponement of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this AgreementSection 2 was in effect during the 12 months immediately preceding the commencement of such postponement, unless any Holders having made elections during the previous postponement shall have had the opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the current postponement.
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after Subject to paragraph (b) hereof,
(i) if the date the Company shall receive, prior to its initial Registration Statement Public Offering, a written request (specifying that it is being made pursuant to this Section 3.2) from both a majority in interest of the Company is declared effective by the Commission under the Securities Act▇▇▇ Investors, a Stockholder or Stockholders holding in the aggregate not less than transferees thereof who have become parties to this Agreement, and a majority in interest of the Registrable Shares▇▇▇▇ Investors, may request, in writingor transferees thereof who become parties to this Agreement, that the Company effect file a registration statement under the 1933 Act, then the Company shall (i) promptly (at least thirty (30) days prior to the filing date) give written notice to all other Holders of such request, (ii) with reasonable promptness, and in any case not later than ninety (90) days after receipt by the Company of such written request for a demand registration, file a registration statement with the SEC relating to such Registrable Securities as to which such request for a demand registration relates and (iii) use its commercially reasonable efforts to cause to be registered under the 1933 Act all Registrable Securities of the same class that Holders have requested be registered.
(ii) if the Company shall receive, following its initial Public Offering, a written request (specifying that it is being made pursuant to this Section 3.2) from a majority in interest of either the ▇▇▇ Investors, or transferees thereof who have become parties to this Agreement, or the ▇▇▇▇ Investors, or transferees thereof who have become parties to this Agreement (in either case, the Holders delivering such request are referred to herein collectively as the "Requesting Holders") that the Company file a registration ------------------ statement under the 1933 Act, covering the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, Registrable Securities with an anticipated gross proceeds of at least $5,000,00050 million (including anticipated gross proceeds, based upon if any, to the then-current market price. Upon receipt Company and any other Holders), then the Company shall (i) promptly (at least thirty (30) days prior to the filing date) give written notice to all other Holders of any such request, (ii) with reasonable promptness, and in any case not later than ninety (90) days after receipt by the Company shall promptly give written notice of such proposed written request for a demand registration, file a registration statement with the SEC relating to all Stockholders. Each such Stockholder shall have the right, by giving written notice Registrable Securities as to the Company within 20 days after which such Stockholder receives his or its notice, to elect to have included in such request for a demand registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall relates and (iii) use its best commercially reasonable efforts promptly to effect cause to be registered under the registration, on Form S-1 or Form S-2 (or any successor form), of 1933 Act all Registrable Shares which Securities of the Company has been same class that Holders have requested to so registerbe registered.
(b) The Company shall not If the total amount of Registrable Securities that all Holders request to be required to effect more than one registration pursuant to subsection (a) above; provided, however, included in an offering exceeds the amount of securities that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all the underwriters reasonably believe compatible with the success of the Registrable Shares included offering, then the Company will include in such registration statement have actually been sold thereunder) only the number of securities which, in the good faith opinion of such underwriters, can be sold, selected pro --- rata based on the number of Registrable Securities which each of the Holders ---- requesting to constitute a registration hereunder; provided furtherbe included owns, that if after any such registration made or has the right to acquire pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement the exercise of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Vested Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registrationOptions.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request following the Company's initial Public Offering, in writing, Requesting Holders shall be entitled to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice be obligated to the other Stockholders. In such eventeffect, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders as many registrations of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration Securities pursuant to this AgreementSection 3.2 as may be requested by the Requesting Holders until such time as they shall no longer own any Registrable Securities.
Appears in 1 contract
Demand Registrations. (ai) At any time commencing one year after six months after the date the initial Registration Statement closing of the Company's Initial Public Offering, if and whenever the Company is declared effective by shall receive a written request therefor from an Initial Member (a "Demand Registration"), the Commission Company agrees to prepare and file promptly, but not more than thirty (30) days after such request, a registration statement under the Securities ActAct covering all, a Stockholder or Stockholders holding in the aggregate but not less than a majority of the Registrable Sharesall, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of Registrable Securities which are the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice subject of such proposed registration request and agrees to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect cause such registration statement to become effective as expeditiously as possible and no later than one hundred twenty (120) days after the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so registerfiling thereof.
(bii) The Company A request and/or registration shall not be required to effect more than constitute a Demand Registration until the registration statement has become effective and remains continuously effective for the lesser of (i) the period during which all Registrable Securities registered in the Demand Registration are sold and (ii) one registration pursuant to subsection hundred eighty (a180) abovedays; provided, however, that subject to Section 5 hereof, a request and/or registration must be declared effective and remain effective for at least 120 days shall not constitute a Demand Registration if (or such shorter period in which all of the Registrable Shares included in x) after such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes 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 solely due for any reason not attributable to the actions Company or omissions to act other holders of the Companysecurities and such interference is not thereafter eliminated or (y) the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration shall Demand Registration are not be considered a demand for registration hereundersatisfied or waived. In addition, the applicable Initial Member shall have the right to withdraw any request for a Demand Registration at any time prior to the time that the registration statement in respect of such Demand Registration has become effective (provided that such Demand Registration shall nonetheless be deemed a request for purposes of this paragraph 21(b) unless such withdrawal is based on material adverse information relating to the Company or its condition, business or prospects that is different from that generally known to the applicable Initial Member at the time of the request).
(iii) The Company shall not be required obligated to effect any prepare, file and cause to become effective only two registration (other than statements per Initial Member pursuant to this paragraph 21(b), excluding registration statements on Form S-3 or any successor form relating to secondary offerings) within six months which shall not count for purposes of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requestedlimitation. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to under this Section 2(cparagraph 21(b) in during any six twelve-month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(giv) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend Initial Member making a Demand Registration intends to distribute the Registrable Shares Securities covered by their request by means of an underwriting, they shall so advise such Initial Member agrees to provide the Company as part with the name of their request the managing underwriter or underwriters (the "managing underwriter") that it proposes to the Company, and the Company shall include such information in the written notice to the other Stockholdersemploy. In such event, the right of any Stockholder Initial Member to include his or its Registrable Shares in such registration pursuant to this paragraph 21(b), shall be conditioned upon such Stockholder’s Initial Member's participation in such underwriting and the inclusion of such Stockholder’s Initial Member's Registrable Shares Securities in the underwriting to the extent requested and to the extent provided herein. All Stockholders Initial Members proposing to distribute their Registrable Shares Securities through such underwriting agree to enter into (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if in the underwriter advises manner set forth above, provided that such underwriting agreement is in customary form and is reasonably acceptable to the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, Company and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwritingapplicable Initial Member.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Cablevision Systems Corp /Ny)
Demand Registrations. (a) At Subject to Section 5.3, at any time commencing one year after prior to the date the initial Registration Statement six-month anniversary of the Closing or following the fourteen-month anniversary of the Closing, Parent, on behalf of the Shareholder Group, may, on not more than twelve (12) separate occasions in the aggregate and not more frequently than once during any nine-month period, require the Company is declared effective by the Commission to file a registration statement under the Securities Act, Act in respect of all or a Stockholder or Stockholders holding in the aggregate not less than a majority portion of the Registrable Shares (so long as such request covers Registrable Shares with a Market Value on the date of the Demand Request of at least $300 million if the aggregate Market Value of all Registrable Shares on such date is at least $300 million or, if such Market Value is less than $300 million, so long as such request covers all Registrable Shares), may request, in writing, that by delivering to the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least written notice stating that such right is being exercised, specifying the number of shares of Common Stock issued or issuable upon conversion of to be included in such registration (the Preferred Stock as are reasonably likely shares subject to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice "DEMAND SHARES") and describing the intended method of such proposed registration distribution thereof, which may include an underwritten offering (a "DEMAND REQUEST"). Subject to all Stockholders. Each such Stockholder shall have the rightSection 5.7, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereuponupon receiving a Demand Request, the Company shall (i) use its reasonable best efforts to file as promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, as reasonably practicable a registration must be declared effective and remain effective for at least 120 days (or statement on such shorter period in which all of form as the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the B-9 <PAGE> Company may include shares of Common Stock in any registration effected pursuant to subsection reasonably deem appropriate (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on Form S-3 pursuant to this Section 2(ca continuous or delayed basis) in any six month period. Upon receipt providing for the registration of any such request, the Company shall promptly give written notice sale of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Demand Shares pursuant to this Section 2, the Company intended method of distribution (ia "DEMAND REGISTRATION") has in good faith, fixed plans to file, within 90 days and (ii) after the filing of an initial version of the time of the requestregistration statement, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all use reasonable best efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in be declared effective under the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from Securities Act as promptly as practicable after the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters filing of such offeringregistration statement.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement
Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement of Subject to Section 4.2(b), if the Company shall receive a written request (specifying that it is declared effective by being made pursuant to this Section 4.2) from GPP that the Commission Company file a registration statement under the Securities 1933 Act, or a Stockholder or Stockholders holding similar document pursuant to any other statute then in effect corresponding to the aggregate not less than a majority 1933 Act, covering the registration of at least thirty percent (30%) of the Registrable SharesSecurities, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, then the Company shall promptly (i) if the Company previously completed a Public Offering at least ten (10) days prior to the filing date give written notice to all other Holders of such proposed registration to all Stockholders. Each such Stockholder shall have the right, request in accordance with Section 4.3 and (ii) not later than 90 days after receipt by giving written notice to the Company within 20 days after of a written request for a demand registration pursuant to this Section 4.2 (except that such Stockholder receives his or its noticefiling may be coordinated with the close of the fiscal year of the Company), file a registration statement with the SEC relating to elect such Registrable Securities as to have included in which such request for a demand registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, relates and the Company shall use its best commercially reasonable efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of cause all Registrable Shares which Securities of the Company has been same class that Holders have requested be registered pursuant to so registerSection 4.3, to be registered under the ▇▇▇▇ ▇▇▇.
(b) The Company GPP Holders shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include be obligated to effect for the GPP Holders two (2) registrations of Registrable Securities pursuant to this Section 4.2 on any form other than S-3 and an unlimited number of registrations if the Company is eligible to use Form S-3 for such information registration; provided, that GPP may not deliver such request until the later of (a) the end of the Initial Two Year Period and (b) the occurrence of a Material Underperformance Event. Notwithstanding the foregoing, GPP agrees to act in good faith (taking into consideration the written notice to the other Stockholders. In such event, the right current situation of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwritingexercising its rights under this Section 4.2.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement of If the Company is declared effective by the Commission under the Securities Act, a Stockholder shall receive from any Holder or Stockholders group of Holders holding in the aggregate not less than a majority at least 40% of the Registrable SharesSecurities at any time beginning 180 days after the closing of the IPO (or such earlier time as permitted by the terms of the lockup agreements executed in connection with the IPO), may request, in writing, a written request that the Company effect the file a registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration statement with respect to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all portion of the Registrable Shares included in such Securities (a “Demand Registration Request,” and the registration statement have actually been sold thereunderso requested is referred to herein as a “Demand Registration,” and the sender(s) to constitute a registration hereunder; provided further, that if after any of such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join request pursuant to this Agreement shall be known as the “Initiating Holder(s)”), then the Company shall, within five Business Days of the receipt thereof, give written notice (the “Demand Exercise Notice”) of such request to all other Holders, and in which there shall have been effectively registered subject to the limitations of this Section 2.1, use its reasonable best efforts to effect, as soon as practicable, the registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 thereunder if so requested and sold if the Company is then eligible to use such a registration) of all Registrable Shares as Securities that the Holders request to be registered within five Business Days of receipt of such notice. There is no limitation on the number of Demand Registrations pursuant to this Section 2.1 which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant is obligated to subsection (a) above if such registration involves an underwritereffect. However, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to take any action to effect more than two registrations on Form S-3 any Demand Registration:
(i) within four months after a Demand Registration pursuant to this Section 2(c2.1 that has been declared or ordered effective;
(ii) during the period starting with the date 15 days prior to its good faith estimate of the date of filing of, and ending on a date 90 days after the effective date of, a Company-initiated registration (other than a registration relating solely to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or to a Rule 145 transaction), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(iii) where the anticipated offering price, before any underwriting discounts or commissions and any offering-related Expenses, is equal to or less than $25.0 million; or
(iiiv) is engaged in any other activity which, particular jurisdiction in which the good-faith determination of the Company’s Board of Directors, Company would be adversely affected by the requested required to qualify to do business or to execute a general consent to service of process in effecting such registration, then qualification or compliance. In addition, if the Company may at its option, provided shall furnish to such Holders a certificate from signed by the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct stating that such request be delayed, in the case of clause (i), during the course good faith judgment of the Company’s , any registration of Registrable Securities should not be made or continued (or sales under a shelf registration statement should be suspended) because (i) such registration (or continued sales under an existing shelf registration statement) would materially and for a period adversely interfere with any existing or potential material financing, acquisition, corporate reorganization or merger or other material transaction or event involving the Company or any of six months thereafterits Subsidiaries or (ii) the Company is in possession of material non-public information, and, the disclosure of which has been determined by the Company to not be in the case of clause Company’s best interests (iiin either case, a “Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Request (or suspend sales under an existing shelf registration statement) until five Business Days after such Valid Business Reason no longer exists, but in no event for a period not in excess of more than 90 days from after the date the Board Company determines a delay is neededValid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five Business Days after such Valid Business Reason no longer exists, but in no event for more than 90 days after the date the Company determines a Valid Business Reason exists; and the Company shall give written notice to the Participating Holders of its determination to postpone the filing of, or withdraw, a registration statement (or suspend sales under an existing shelf registration statement) and of the fact that the Valid Business Reason for such postponement, withdrawal or suspension no longer exists, in each case, promptly after the occurrence thereof; provided, however, that the Company shall not defer its obligation in this manner more than twice or for more than 90 days in any 12 month period. Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant the immediately prior paragraph of this Section 2.1(a), such right Holder will discontinue its disposition of Registrable Securities pursuant to delay a request to be exercised such registration statement and, if so directed by the Company, will deliver to the Company not more (at the Company’s expense) all copies, other than once per permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration demanded.
(e) In the event that Registrable Shares are sold statement filed pursuant to a Demand Registration Statement in a firm commitment underwritten offering (whether pursuant to this Section 22.1(a) or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company agrees shall not be considered to enter into have effected an underwriting agreement containing customary representations effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by such withdrawn registration statement and warranties with respect to such new registration statement shall have been declared effective and shall not have been withdrawn. If the business and operations Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, not later than five Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than 90 days after the date of the issuer postponement or withdrawal), use its reasonable best efforts to effect the registration under the Securities Act of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification Registrable Securities covered by the withdrawn or postponed registration statement in accordance with Section 2.1 (unless the Initiating Holder(s) shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of the underwriters this Agreement), and such registration shall not be withdrawn or postponed pursuant to clause (iv) of such offeringthis Section 2.1(a).
(fi) The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holder(s) and (y) the Registrable Securities of any other Holder of Registrable Securities, which shall have made a written request to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Participating Holder) within five Business Days after the receipt of the Demand Exercise Notice.
(ii) The Company shall, as expeditiously as possible, but subject to the limitations set forth in this Section 2.1, use its reasonable best efforts to (x) effect such registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act, if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with the method of distribution intended by the Initiating Holder(s) and (y) if requested by the Initiating Holder(s), obtain acceleration of the effective date of the registration statement relating to such registration.
(c) In the case of connection with any registration effected at the request of the Stockholders pursuant to this Section 2Demand Registration, the Initiating Holders (as hereinafter definedHolder(s) shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in any underwritten offeringconnection with such registration and each other managing underwriter for such registration, in each case subject to the approval consent of the Company, which approval may not be unreasonably withheld or delayedwithheld.
(gd) If so requested by the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwritingHolder(s), they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders (together with all Holders proposing to distribute their Registrable Shares securities through such underwriting (together with the Companyunderwriting) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises underwriting by the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(hHolder(s) Only Common Stock may be included in a registration pursuant to this AgreementSection 2.1(c).
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after following the Effective Time, to and including the date on which the initial Registration Statement Stockholder shall have received a written opinion of legal counsel reasonably satisfactory to the Stockholder and the Company is declared effective and addressed to the Company and the Stockholder stating that the Stockholder Company Shares may be publicly offered for sale in the United States by the Commission Stockholder without restriction as to manner of sale and amount of securities sold and without registration under the Securities ActAct (such period, the "Demand Period"), the Stockholder shall have the right on two occasions to require the Company to file a Stockholder registration statement under the Securities Act in respect of all or Stockholders holding in the aggregate not less than a majority portion of the Registrable SharesStockholder Company Shares held by it. As promptly as practicable, may request, but in writing, no event later than 60 days after the Company receives a written request from the Stockholder demanding that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least so register the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result Stockholder Company Shares specified in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, which number shall not be less than the Minimum Number, the Company shall file with the Commission and thereafter use its reasonable best efforts to cause to be declared effective promptly give written notice a registration statement (a "Demand Registration") providing for the registration of such proposed registration to all Stockholders. Each such number of Stockholder Company Shares as the Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so registerdemanded be registered.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period Anything in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due this Agreement to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In additioncontrary notwithstanding, the Company shall not be required to file or otherwise effect any registration Demand Registration during the period between the 16th day of each of March, June, September and December and 48 hours following public release by the Company (by means of a press release, 10-Q filing or other public announcement) of its earnings for the quarter in which such 16th day occurs. In addition, anything in this Agreement to the contrary notwithstanding, the Company shall be entitled to postpone and delay the filing or effectiveness of a Demand Registration and, following the effectiveness of any Demand Registration, may suspend the performance of its obligations under Section 3.04 with respect to such Demand Registration (the "Section 3.04 Obligations"), in any such case for a reasonable period of time (each, a "Blackout Period"), if (i) at any time that the Company shall determine that any such filing or the offering of any Registered Shares would, in the good faith judgment of the Board of Directors of the Company, require disclosure of (to the extent such a transaction has not been previously publicly disclosed), impede, delay or otherwise interfere with any pending or contemplated securities offering, sale, financing, acquisition, corporate reorganization or other similar transaction involving the Company, (ii) at any time that the Company shall determine that any such filing or the offering of any Registered Shares would, in the good faith judgment of the Board of Directors of the Company, after receipt of advice from the Company's investment bank or outside financial advisor, adversely affect any pending or contemplated offering or sale of any class of securities by the Company, or (iii) at any time that the Company shall determine that any such filing or the offering of any Registered Shares would, in the good faith judgment of the Board of Directors of the Company, after receipt of advice from the Company's outside legal counsel, require disclosure of material nonpublic information (other than on Form S-3 information relating to an event described in clause (ii) or (iii) of this sentence) which, if disclosed at such time, would be materially harmful to the interests of the Company and its stockholders; provided that in the case of a Blackout Period pursuant to clause (i) or (ii) above, the Blackout Period shall earlier terminate upon the completion or abandonment of the relevant securities offering or sale, financing, acquisition, corporate reorganization or other similar transaction; and provided, further, that in the case of a Blackout Period pursuant to clause (iii) above, the Blackout Period shall earlier terminate upon public disclosure by the Company or public admission by the Company of such material nonpublic information or such time as such material nonpublic information shall be publicly disclosed without breach of the last sentence of this subsection (b); and provided, further, that in the case of any Blackout Period, the Company shall furnish to the Stockholder a certificate of the Secretary of the Company stating that an event permitting a Blackout Period has occurred and attaching a certified copy of a resolution of the Board of Directors of the Company to such effect. Notwithstanding anything herein to the contrary, the Company shall not postpone or delay the filing or effectiveness of any Demand Registration and shall not suspend the performance of the Section 3.04 Obligations pursuant to the second sentence of this Section 3.01(b) for an aggregate of more than 30 days in the case of the first Demand Registration to which the Stockholder is entitled or for an aggregate of more than 90 days in the case of the second Demand Registration to which the Stockholder is entitled. Upon notice by the Company to the Stockholder of any such determination, the Stockholder covenants that it shall keep the fact of any such notice strictly confidential, and promptly halt any offer, sale, trading or transfer by it or any successor form relating of its Affiliates of any Registered Shares for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company). After the expiration of any Blackout Period and without further request from the Stockholder, the Company shall effect the filing of the relevant Demand Registration (if not already filed) and shall use its reasonable best efforts to secondary offeringscause any such Demand Registration to be declared effective (if not already effective) within six months of as promptly as practicable unless the Stockholder shall have, prior to the effective date of any other Registration Statement of the Company such Demand Registration, withdrawn in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registrationwriting its initial request.
(c) At any time or times after Any request by the Company becomes eligible Stockholder for a Demand Registration which is subsequently withdrawn prior to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the related registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company statement becoming effective shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that constitute a Demand Registration for purposes of determining the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt number of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as Demand Registrations to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement Stockholder is in fact filed within such 90entitled if the out-day period and of-pocket expenses incurred by the Company is actively employing through the date of such request in good faith all reasonable efforts to cause connection with such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demandedare reimbursed.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Investor Agreement (Koninklijke Philips Electronics Nv)
Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement The Stockholders holding 50% or more of then remaining Registrable Stock may jointly request the Company is declared effective by the Commission to register under the Securities Act, a Stockholder or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than Act on Form S-3 or any successor form relating to secondary offerings) within six months thereto all, but not less than all, of the effective date shares of Registrable Stock held by such Stockholders for sale in the manner specified in such notice; provided that the Company is a registrant then entitled to use -------- ---- Form S-3 or any other Registration Statement successor form thereto to register such shares. Upon receipt of such a request by Stockholders holding 50% or more of the then remaining Registrable Stock, the Company shall within five days of the receipt thereof give notice to all Stockholders and shall, subject to the limitations of this Section 3, use its best efforts to effect such a registration as soon as practicable and in any event to file within 75 days of such a request a registration statement under the 1933 Act covering all the Registrable Stock which the Stockholders shall have been entitled in writing request to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall and to use its best efforts promptly to effect have such registration statement become effective. Notwithstanding anything to the registration on Form S-3contrary contained herein, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any no request to register Registrable Shares pursuant to may be made under this Section 23(a): (i) during the period starting with the date 60 days prior to the Company's estimated date of filing of, and ending on the date six months immediately following the effective date of, any registration statement pertaining to the securities of the Company (i) has other than a registration of securities in good faith, fixed plans a Rule 145 transaction or with respect to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and an employee benefit plan); provided that the Company is actively employing in good -------- ---- faith all reasonable efforts to cause such registration statement to become effective, or ; and (ii) is engaged in any other activity which, in if the good-faith determination of Company shall furnish to the Company’s Board of Directors, would be adversely affected Stockholder a certificate signed by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer President of the Company reciting such circumstances is furnished stating that in the good faith judgment of the Board of Directors it would be significantly detrimental to the StockholdersCompany or its shareholders, direct provided that any impact on the stock price that such request an offer would cause will not be delayedconsidered detrimental to the shareholders for a registration statement to be filed in the near future, in the case of clause (i), during the course of which event the Company’s registration and for a period of six months thereafter's obligation to use all reasonable efforts to register, and, in the case of clause (ii), qualify or comply under this Section 3(b) shall be deferred for a period not in excess of to exceed 90 days from the date of receipt of written request from the Board determines a delay is needed, such right to delay a request to be exercised by Stockholders; provided that the Company may not utilize this right more than -------- ---- once per in any 12-month period. The Company will use its best efforts to insure that each registration demandedfiled pursuant to this Section 3(a) remain in effect for 120 days after the effective date of such filing.
(eb) In the event that the Company is not a registrant entitled to use Form S-3 or any successor form thereto, the Stockholders holding 50% or more of then remaining Registrable Shares are sold pursuant Stock may jointly request the Company to a Registration Statement register under the Securities Act of 1933 on Form ▇-▇, ▇▇▇▇ ▇-▇ or any similar or successor registration form thereto all, but not less than all, of the shares of Registrable Stock held by them for sale in the manner specified in such notice; provided, that such registration shall be underwritten on a firm commitment underwritten offering pursuant to this Section 2-------- ---- basis. Upon receipt of such a request by any Stockholders holding 50% or more of the Registrable Stock, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations shall within five days of the issuer of the securities being registered receipt thereof give notice to all Stockholders and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offeringshall, subject to the approval limitations of this Section 3, use its best efforts to effect such a registration as soon as practicable and in any event to file within 75 days of such a request a registration statement under the Company, 1933 Act covering all the Registrable Stock which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested request to be included in such registration by and to use its best efforts to have such registration statement become effective. The Company will use its best efforts to insure that each registration filed pursuant to this Section 3(a) remain in effect for 120 days after the participating effective date of such filing.
(c) If the Stockholders (or request that the Registrable Stock be sold in any an underwritten offering, then the Company, in consultation with the Stockholders, shall designate the managing underwriter of such other proportion as agreed upon by the participating Stockholders)offering. Notwithstanding anything else stated hereinThe Company shall be obligated to register Registrable Stock pursuant to this Section 3 on two occasions only; provided, the number of however, that such obligation shall -------- ------- be deemed satisfied only when a Registration Statement covering all shares of Registrable Shares Stock specified in the notice received pursuant to be included Section 3(a) for sale in such underwriting accordance with the method of disposition specified by the Stockholders, shall not be reduced unless all other securities are first excluded from the underwritinghave become effective.
(hd) Only The Company shall be entitled to include in any registration statement referred to in this Section 3, for sale in accordance with the method of disposition specified by the Stockholders, shares of Common Stock may to be included sold by the Company for its own account, except as and to the extent that, in a registration pursuant the opinion of the managing underwriter, such inclusion would adversely affect the marketing of the Registrable Stock to this Agreementbe sold.
Appears in 1 contract
Sources: Stock Restriction and Registration Rights Agreement (On Technology Corp)
Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement of If (i) the Company shall receive a written request (specifying that it is declared effective by the Commission under the Securities Act, a Stockholder being made pursuant to this Section 7) from one or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, more Holders that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, file a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings)Form S-3 regardless of its designation) (or, any Stockholder or Stockholders may request if the Company, in writing, Company is not then a registrant entitled at such time to effect the registration on use Form S-3 (or any form to Form S-3 regardless of its designation) to register such shares, a Form S-1 (or any successor formform to Form S-1 regardless of designation) for a public offering of Registrable Shares (whether by underwriting or otherwise) the reasonable anticipated aggregate price to the public of which would equal or exceed $3,000,000 (a “Demand Registration Request”), then the Company shall promptly notify all other Holders of such Stockholders’ request and shall use its reasonable best efforts to cause all Registrable Shares having that Holders, within fifteen (15) days after receipt of any such written notice, have requested be registered to be registered as soon as reasonably practicable thereafter. Table of Contents
(b) Notwithstanding the foregoing, (i) the Company shall not be obligated to effect a registration pursuant to Section 7(a) during the period starting with the date ninety (90) days prior to the Company’s estimated date of filing of, and ending on a date ninety (90) days following the effective date of, a registration statement pertaining to an aggregate underwritten public offering price of at least $1,000,000 (based on securities for the then-current public market price) oraccount of the Company, if lessprovided, all that the Company is actively employing in good faith its commercially reasonable efforts to cause such registration statement to become effective and that the Company’s estimate of the date of filing such Stockholder’s remaining Registrable Sharesregistration statement is made in good faith; provided, however, that the Company shall not file a registration statement upon the request of one or more Holders pursuant to Section 7(a) after ninety (90) days have elapsed after the estimated date of filing of such registration statement pertaining to an underwritten public offering of securities for the account of the Company; and provided, further, that the Company shall only be obligated permitted to effect more than two registrations on Form S-3 delay pursuant to this Section 2(c), and further provided that 7(b)(i) the filing of a registration statement requested to be filed by one or more Holders pursuant to Section 7(a) once in any 12-month period; (ii) the Company shall not be obligated to effect (x) more than one registration three registrations pursuant to Section 7(a) on Form S-3 S-1 (or any successor form) and (y) more than two registrations pursuant to Section 7(a) in any twelve month period, and (iii) if the Company shall furnish to the Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed (a “Valid Business Reason”) in the near future, then the Company’s obligation to use its reasonable best efforts to file a registration statement shall be deferred until such Valid Business Reason no longer exists; provided that Company may exercise its right to delay filing a registration statement pursuant to this Section 2(c7(b)(iii) or to suspend the use of a prospectus included in an effective registration statement pursuant to Section 13(f) for an aggregate period not to exceed ninety (90) days in any six 12-month period. Upon receipt of any such request, the The Company shall promptly give written notice of its determination to delay or suspend a registration statement and of the fact that the Valid Business Reason for such proposed delay or suspension no longer exists, in each case, promptly after the occurrence thereof.
(c) If any registration statement pursuant to all Stockholders. Each such Stockholder shall have this Section 7 or any Subsequent Registration (as defined below) ceases to be effective for any reason at any time during the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. ThereuponEffectiveness Period, the Company shall use its reasonable best efforts promptly to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within forty-five (45) days of such cessation of effectiveness amend such registration statement in a manner to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional registration statement, covering all of the Registrable Shares covered by such prior registration statement (a “Subsequent Registration”). If a Subsequent Registration is filed, the Company shall use reasonable best efforts to cause the Subsequent Registration to be declared effective under the Securities Act as soon as practicable after such filing and to keep such Subsequent Registration continuously effective for the remainder of the Effectiveness Period plus the number of days during which the registration statement replaced by the Subsequent Registration ceased to be effective. Notwithstanding anything to the contrary contained herein the filing by the Company of a Subsequent Registration shall not be counted for purposes of limitations on the number of registration statements the Company is required to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested pursuant to registerthis Section 7.
(d) If at the time Company files any shelf registration statement for the benefit of the holders of any request to register Registrable Shares pursuant to this Section 2of its securities other than the Holders, the Company (i) has agrees that it shall include in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement such disclosures as may be required by Rule 430B (referring to become effective, or (ii) is engaged the unnamed selling security holders in any other activity which, in a generic manner by identifying the good-faith determination initial offering of the Company’s Board of Directorssecurities to the Holders) in order to ensure that the Holders may be added to such shelf registration statement, would be adversely affected by the requested registration, then if the Company may so elects, at its option, provided a certificate from later time through the Chief Executive Officer filing of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for prospectus supplement rather than a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demandedpost-effective amendment.
(e) In the event that Registrable Shares are sold pursuant The Holders’ rights to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company7 are in addition to, and the Company shall include such information not in the written notice lieu of, their rights to the other Stockholders. In such event, the right registration under Section 2 of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.. Table of Contents
Appears in 1 contract
Demand Registrations. (a) At 3.1.1 If the Company shall receive at any time commencing one year after the earlier of: (i) four (4) years from the date of this Agreement; or (ii) six (6) months after the initial Registration Statement effective date of the first registration statement for a public offering of securities of the Company, other than a registration statement relating to the sale of securities to employees of the Company is declared effective by the Commission under the Securities Actpursuant to a stock option plan, stock purchase plan or other similar plan ("IPO"), a Stockholder written request from: (I) the Holders of a majority in interest of the Registrable Securities which are issued or Stockholders holding in issuable to Clal, Courses, the aggregate not less than a Ampal Group, the JVP Group and the Challenge Group (collectively the "NON H PREFERRED DEMANDING SHAREHOLDERS"); (II) the holders of the majority of the Series H Preferred Shares (the "H PREFERRED DEMANDING SHAREHOLDERS"); or (III) the Holders of at least fifty percent (50%) of the Registrable Shares, may request, Securities then outstanding (in writingeach case the "INITIATING HOLDERS"), that the Company effect file a registration statement under the Act covering the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion Registrable Securities having an aggregate offering price, net of the Preferred Stock as are reasonably likely to result underwriting discounts and commissions, in proceedsexcess of USD$5,000,000 (five million), upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, then the Company shall promptly shall, within ten (10) days of the receipt thereof, give written notice of such proposed registration request to all Stockholdersother Holders. Each such Stockholder If Holders other than the Initiating Holders ("JOINING HOLDERS") intend to participate in the registration under this subsection, they shall have the right, by giving written notice to notify the Company in writing (the "REPLY") within 20 twenty (20) days after such Stockholder receives his or its noticefollowing receipt of the Company's notice and shall include in their Reply the number of Registrable Securities they desire to register. The Company shall effect as soon as practicable, to elect to have included and in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company any event shall use its best efforts promptly to effect within sixty (60) days of the registrationreceipt of such request of the Initiating Holders, on Form S-1 or Form S-2 (or any successor form), the registration under the Act of all Registrable Shares Securities which the Company has been Holders requested to so register.
be registered as aforesaid. No more than three (3) requests shall be made pursuant to this Section 3.1: (a) one (1) of which is reserved for the Non H Preferred Demanding Shareholders as a group; (b) The Company one (1) of which is reserved for the majority of the Holders of Registrable Securities; and (c) one (1) of which is reserved for the holders of the majority of the Series H Preferred Shares. Subject to the prior approval of the Board the provisions of Section 3 shall not be required also apply in the event that the Initiating Holders request to effect more than one registration pursuant to subsection (a) above; providedparticipate in the IPO by selling any or all of their shares provided that the underwriters determine, howeverin their sole discretion, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall participation will not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the success of the offering contemplated by such registrationthe Company. Such inclusion shall not be treated as a demand for the purposes of Section 3.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(da) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to the Company, this Section 3.1 and the Company shall include such information in the written notice to the other StockholdersHolders pursuant to Section 3.1.1 above. The underwriter will be selected by a majority in interest of the Initiating Holders and any Joining Holders, provided such underwriter shall be reasonably acceptable to the Company. In such event, the right of any Stockholder Joining Holder to include his or its Registrable Shares Securities in such registration shall be conditioned upon such Stockholder’s Joining Holder's participation in such underwriting and the inclusion of such Stockholder’s Joining Holder's Registrable Shares Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Joining Holder) to the extent provided herein. All Stockholders Holders proposing to distribute their Registrable Shares securities through such underwriting (together with the Company) underwriter shall enter into an underwriting agreement in customary form with the underwriter or underwriters underwriter(s) selected for such underwriting. Notwithstanding anything else stated hereinIf any Holder disapproves of the terms of the underwriting, if such Holder may elect to withdraw therefrom by written notice to the Company, the underwriter advises and the Initiating Holders. The Registrable Securities so withdrawn from such underwriting shall also be withdrawn from such registration; provided that if by the withdrawal of such Registrable Securities, a greater number of Registrable Securities held by other Holders may be included in writing such registration (up to the maximum limitations imposed by the underwriters), then the Company shall offer to all Holders who have included Registrable Securities in the registration, the right to include additional Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders).
(b) If the underwriter of such offering determines, in its sole discretion, that market factors require a limitation of the number of shares to be underwritten, then requested by the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the Joining Holders is greater than the number of shares that may be underwritten, the number of Registrable Shares Securities that may be included in the underwriting registration shall be allocated pro rata among all participating Stockholders based upon their total ownership first, the holders of the aggregate Registrable Securities held by the majority of the Preferred Holders, and thereafter to all other Initiating Holders and Joining Holders at a ratio of four (4) shares of the Preferred Shareholders to every one (1) share of all other Holders, based with respect to the distribution between such other Holders, upon the number of Registrable Shares Securities requested by them to register, and based, with respect to the distribution between the H and Non H Demanding Preferred Shareholders, on the number of Registrable Securities then outstanding held by each of them, PROVIDED, HOWEVER, that if such registration is the registration initiated by the H Preferred Demanding Shareholders according to the provisions of Section 3.1.1(II) above and reserved for the H Preferred Demanding Shareholders according to the provisions of Section 3.1.1(c) above, the securities held by the Series H Preferred Shareholders shall be included in the registration prior and in preference to any of the securities held by the other Demanding Preferred Shareholders and if such registration is the registration initiated by the participating Stockholders (or in any such other proportion as agreed upon Non H Demanding Shareholders according to the provisions of Section 3.1.1(I) above and reserved for the Non H Demanding Shareholders according to the provisions of Section 3.1.1(a) above, the securities held by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to Non H Preferred Shareholders shall be included in such underwriting shall not be reduced unless all the registration prior to and in preference to any of the securities held by the other securities are first excluded from the underwritingDemanding Preferred Shareholders.
3.1.3 Notwithstanding the foregoing, if within ten (h10) Only Common Stock may days of receipt of a request for the registration of Registrable Securities as set forth in subsection 3.1.1, the Company shall furnish to the Initiating Holders a certificate signed by the Chief Executive Officer (the "CEO") of the Company stating that a letter of intent with an underwriter relating to the public sale of the Company's shares has been signed, then, subject to Section 3.3, if the Company shall furnish the Initiating Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board, it would be included seriously detrimental to the Company and its shareholders for such registration of Registration Securities to be effected at such time, in which event the Company shall have the right to defer taking action with respect to such a registration pursuant request for a period of not more than six (6) months after receipt of the request of the Initiating Holders under subsection 3.1.1, provided however, that such right to this Agreementdelay a request shall be exercised by the Company not more than once in any twelve (12) month period.
Appears in 1 contract
Sources: Rights Agreement (Powerdsine LTD)
Demand Registrations. (a) At Warburg may at any time commencing one year after following the date hereof and on not more than five separate occasions in the initial Registration Statement of aggregate and not more frequently than once during any 180 day period, require the Company is declared effective by the Commission to file a registration statement under the Securities Act, Act in respect of all or a Stockholder or Stockholders holding in the aggregate not less than a majority portion of the Registrable Common Shares, or the Common Shares into which Investor Shares may requestbe converted, then Beneficially Owned by Warburg or by any other person that Beneficially Owns Common Shares and who acquired such Common Shares or Investor Shares in writing, that the Company effect the registration on Form S-1 or Form S-2 (connection with such person's status as a partner in any partnership in which Warburg or any successor formof its Affiliates is the general partner (all such Common Shares, the "WARBURG REGISTRABLE SHARES") for at least (provided that such request covers Warburg Registrable Shares with a Market Value on the number of shares of Common Stock issued or issuable upon conversion date of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, Demand Request of at least $5,000,00025 million), based upon by delivering to the then-current market price. Upon receipt Company a written notice stating that such right is being exercised, specifying the number of any Common Shares to be included in such registration (the shares subject to such request, the Company shall promptly give written notice "WARBURG DEMAND SHARES") and describing the intended method of such proposed registration to all Stockholdersdistribution thereof (a "WARBURG DEMAND REQUEST"). Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. ThereuponUpon receiving a Warburg Demand Request, the Company shall use its best efforts promptly to effect (1) provide written notice of the registrationWarburg Demand Request, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 4.3 hereof, to H&F and each other Investor, (2) use reasonable efforts to file as promptly as reasonably practicable a registration must be declared effective and remain effective for at least 120 days (or statement on such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter reasonably deem appropriate providing for the registration of all, or part the sale of such shares would materially Warburg Demand Shares and adversely affect any other Investor Shares to be included pursuant to Sections 4.3 and 4.4 hereof pursuant to the offering contemplated by such registration.
intended method of distribution and (c3) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect filing of an initial version of the registration on Form S-3 (or such successor form)statement, of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effectivebe declared effective under the Securities Act as promptly as practicable after the date of filing of such registration statement. Any Demand Registration filed pursuant to the request of Warburg may, subject to the provisions of Section 4.4 below, include other Common Shares that the Company is required to include in such registration statement by virtue of existing agreements between the holders of such Common Shares and the Company (the "EXISTING REGISTRATION RIGHTS").
(b) H&F may at any time following the date hereof and on not more than five separate occasions in the aggregate and not more frequently than once during any 180 day period, require the Company to file a registration statement under the Securities Act in respect of all or a portion of the Common Shares, or the Common Shares into which Investor Shares may be converted, then Beneficially Owned by H&F or by any other person that Beneficially Owns Common Shares and who acquired such Common Shares or Investor Shares in connection with such person's status as a partner in any partnership in which H&F or any of its Affiliates is the general partner (all such Common Shares, the "H&F REGISTRABLE SHARES," and together with the Warburg Registrable Shares, the "REGISTRABLE SHARES") (provided that such request covers H&F Registrable Shares with a Market Value on the date of the Demand Request of at least $25 million), by delivering to the Company a written notice stating that such right is being exercised, specifying the number of Common Shares to be included in such registration (the shares subject to such request, the "H&F DEMAND SHARES") and describing the intended method of distribution thereof (a "H&F DEMAND REQUEST"). Upon receiving a H&F Demand Request, the Company shall (1) provide written notice of the H&F Demand Request, pursuant to Section 4.3 hereof, to Warburg and each other Investor, (2) use reasonable efforts to file as promptly as reasonably practicable a registration statement on such form as the Company may reasonably deem appropriate providing for the registration of the sale of such H&F Demand Shares and any other Investor Shares to be included therein pursuant to Section 4.3 and 4.4 hereof pursuant to the intended method of distribution, and (3) after the filing of an initial version of the registration statement, use reasonable efforts to cause such registration statement to be declared effective under the Securities Act as promptly as practicable after the date of filing of such registration statement. Any Demand Registration filed pursuant to the request of H&F may, subject to the provisions of Section 4.4 below, include other Common Shares that the Company is required to include in such registration statement by virtue of the Existing Registration Rights.
(c) Notwithstanding anything in this Agreement to the contrary, the Company shall be entitled to postpone and delay, for reasonable periods of time not to exceed 60 consecutive days and in no event to exceed more than an aggregate of 90 days during any 360-day period (a "BLACKOUT PERIOD"), the filing or effectiveness of any Demand Registration if the Board shall determine that any such filing or the offering of any Registrable Shares would (1) in the good faith judgment of the Board, impede, delay or otherwise interfere with any pending or contemplated acquisition, corporate reorganization or other similar material transaction involving the Company (each, a "MATERIAL TRANSACTION"), (2) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Company, or (ii3) is engaged in any the good faith judgment of the Board, require disclosure of material non-public information (other activity than in- formation relating to an event described in clauses (1) or (2) above) which, in the good-faith determination of the Company’s Board of Directorsif disclosed at such time, would be adversely affected harmful to the best interests of the Company and its shareholders. Upon notice by the requested registrationCompany to each Investor of any such determination, such Investor shall keep the fact of any such notice strictly confidential, and during any Blackout Period promptly halt any offer, sale, trading or transfer by it or any of its Subsidiaries of any Common Shares for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration, each prospectus included therein, and any amendment or supplement thereto by it for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, will deliver to the Company any copies then in its possession of the prospectus covering such Registrable Shares.
(d) In case a Demand Registration has been filed, if a Material Transaction has occurred, the Company may at cause such Demand Registration to be withdrawn and its option, provided a certificate from the Chief Executive Officer of the Company reciting effectiveness terminated or may postpone amending or supplementing such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and Demand Registration for a reasonable period of six months thereaftertime; provided, andhowever, that in the case of clause (ii), for no event shall a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised Demand Registration so withdrawn by the Company not more than once per registration demandedcount for the purposes of determining the number of Demand Registrations to which either Warburg or H&F is entitled under Section 4.1(a) or (b).
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment connection with any underwritten offering pursuant to under this Section 24.1, the Company agrees to enter into an underwriting agreement containing customary representations managing underwriter for such Demand Registration shall be jointly selected by Warburg and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to H&F, provided that such managing underwriter shall be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offeringa nationally recognized investment banking firm.
(f) In the case of Nothing in this Article IV shall affect or supersede any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter transfer restrictions set forth in Article V hereof or any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means other provisions of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Demand Registrations. (ai) At any time commencing one year from and after the date 12 months after the initial Registration Statement of the Company is declared effective by the Commission under the Securities ActClosing Date, a Stockholder any Holder or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, Holders may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the rightelect, by giving written notice thereof to the Company within 20 days after such Stockholder receives his or its noticeCompany, to elect require the Company to have included in such registration such use its reasonable best efforts to register all or a portion of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, Securities under the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable SharesSecurities Act; provided, however, that the Company shall not be obligated to effect register the -------- ------- Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, constitute 5% or more than two registrations of the then-outstanding securities of the class or series to which such Registrable Securities belong; provided, further, that in any event the Company shall be obligated to register -------- ------- such Registrable Securities upon such election only if the Registrable Securities to be registered have a total market value (or, if there is no existing public market, a proposed maximum aggregate offering price to be set forth on Form S-3 the facing page of the applicable registration statement) of at least $5 million. Promptly following such election, the Company shall (1) give notice to each other Holder of Registrable Securities of such election, which notice shall set forth the identity of the electing Holders, and (2) use its reasonable best efforts to cause to be declared or become effective under the Securities Act a registration statement providing for the registration of, and the sale in accordance with the intended method or methods of distribution thereof by the electing Holders of, the Registrable Securities. The Company shall be required to cause to become effective pursuant to this Section 2(c)2(a) no more than three registration statements in the aggregate and no more than one registration statement in any six month period. Notwithstanding the foregoing, and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 register Registrable Securities upon any election pursuant to this Section 2(c2(a)(i) if (1) fewer than 180 days have elapsed after the effective date of a registration statement registering newly issued or treasury shares of the Company's common stock for purposes of a primary offering (as defined in Section 2(b)(i) hereof) on a firm commitment underwritten basis, but only if and to the extent that (x) the underwriting agreement entered into in connection with any six month such offering expressly prohibited registration of Registrable Securities upon such election and (y) no period referred to in this sentence, and no postponement referred to in Section 2(a)(iii) hereof, was in effect during the 12 months immediately preceding the commencement of such 180 day period. Upon receipt , unless any Holders having made elections during the previous period or postponement, as the case may be, shall have had the opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the current such period.
(ii) In the event of any such requestregistration of Registrable Securities pursuant to Section 2(a)(i) hereof, the Company shall promptly give not, without the express written notice consent of the Holders of a majority of such proposed Registrable Securities, cause or permit any other securities of the Company or of any other Person (whether such securities are to be issued by the Company, are held in the Company's treasury or are then outstanding and held by other persons) to be covered by such registration statement or otherwise to all Stockholders. Each be included in such Stockholder shall have the rightregistration; provided, however, that any other Holder of Registrable Securities may elect, by giving written notice to such effect to the Company within 20 no later than 15 business days after such Stockholder receives his or its noticethe Company shall have given the notice referred to in clause (1) of Section 2(a)(i), to elect to have such Holder's Registrable Securities included in such registration, in which case such Holder shall be treated for all purposes hereunder as having made a demand for registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 22(a).
(iii) In the event that, following any election pursuant to Section 2(a)(i) hereof but prior to the Company filing of a registration statement in respect of such election, (iA) has the Board of Directors of the Company, in its reasonable judgment and in good faith, fixed plans to file, within 90 days resolves that the filing of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effectiveand the offering of Registrable Securities pursuant thereto would materially interfere with any significant acquisition, corporate reorganization or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to similar transaction involving the Company, and (B) the Company gives the Holders having made such election written notice of such determination (which notice shall include a copy of such information in the written notice to the other Stockholders. In such eventresolution), the right Company shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to postpone for up to 90 days the filing of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares statement otherwise required to be underwrittenprepared and filed by it pursuant to Section 2(a)(i) hereof; provided, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant heretohowever, and the number of shares of Registrable Shares that no such postponement may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership effected if any other -------- ------- postponement of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this AgreementSection 2 was in effect during the 12 months immediately preceding the commencement of such postponement, unless any Holders having made elections during the previous postponement shall have had the opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the current postponement.
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement of The Investor may request the Company is declared effective to use all commercially reasonable efforts to effect a Registration of all or part of its Common Shares (such Registration being hereinafter referred to as a “Demand Registration”). Any such request shall be made by the Commission under the Securities Act, notice in writing (a Stockholder or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, that “Request”) to the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least and shall specify the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, to be sold by the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so registerInvestor.
(b) The Company shall not be required to Investor may only effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereofthree Demand Registrations in total and two in any twelve month period. For the purposes of this Section, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration Demand Registration shall not be considered as having been effected until a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 receipt has been issued by one or any successor form relating to secondary offerings) within six months more of the Canadian Securities Commissions for the (final) prospectus filed in connection with such Demand Registration, or the SEC has declared effective date of any other the registration statement filed in connection with such Demand Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriterstatement has become effective as a matter of law), unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registrationas applicable.
(c) At any time The Corporation shall not be obliged to effect a Demand Registration in the event the Board determines in its good faith judgment that either (A) the effect of the filing of a prospectus or times after registration statement would materially impede the ability of the Company becomes eligible to file consummate a Registration Statement on Form S-3 material financing, acquisition, corporate reorganization, merger or other material transaction involving the Company; or (or any successor form B) there exists at the time material non-public information relating to secondary offeringsthe Company the disclosure of which the Company believes would be detrimental to the Company and the Company has bona fide business purposes for preserving such information as confidential (in either such case, a “Valid Business Reason”), any Stockholder or Stockholders may request . In either case the Company’s obligations under this Section 2.1 will be deferred for a reasonable period of time (not to exceed 90 days) from the date of receipt of the Request, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, provided that the Company shall may not be obligated to effect defer its obligations under this Section 2.1 more than two registrations on Form S-3 twice in any twelve month period. The Company will give written notice of its determination to postpone filing and of the fact that the Valid Business Reason for such postponement no longer exists, in each case, promptly after the occurrence thereof. If the Company postpones the filing of a prospectus or registration statement pursuant to this Section 2(c)2.1(c) and if the Investor, and further provided at any time prior to receiving written notice that the Valid Business Reason for such postponement no longer exists, advises the Company shall in writing that it has determined to withdraw such Request for a Demand Registration, then such Demand Registration and the Request therefor will be deemed to be withdrawn and such Request will be deemed not be obligated to effect more than one registration on Form S-3 have been given for purposes of determining whether the Investor has exercised its right to a Demand Registration pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register2.1.
(d) If at the time The Corporation shall not be obliged to effect a Demand Registration unless necessary to permit an offering of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer freely tradeable securities of the Company reciting such circumstances is furnished to under the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demandedU.S. Securities Act.
(e) In the event that Registrable Shares are sold pursuant The lead underwriter or underwriters for any offering in connection with a Demand Registration shall be mutually agreed to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of Investor and the underwriters of such offeringCompany, each acting reasonably.
(f) In The Company and the case of Investor each agree, in connection with any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any Demand Registration involving an underwritten offering, subject that they each will not, (a) without the prior written consent of the lead underwriter, for a reasonable period requested by any underwriter involved in such underwritten offering following the closing of a sale of Registrable Securities in accordance with a Demand Registration, not to exceed 90 days, issue or sell or agree to issue or sell Common Shares or securities convertible into or exercisable or exchangeable for Common Shares (other than pursuant to (i) contractual commitments that have been publicly disclosed by the Company prior to the approval date on which the Company received the Request in connection with such Demand Registration, (ii) equity compensation plans or (iii) the terms of convertible or exchangeable securities outstanding at the Companydate of such Demand Registration; and other exceptions as may be agreed upon between the Company and the lead underwriter, which approval may not each acting reasonably) or (b) file or announce the intention to file a prospectus or registration statement to qualify or register any Common Shares for distribution under Securities Laws until the date the preliminary prospectus or registration statement is filed for the underwritten offering in connection with the Demand Registration or until it is determined under Section 2.1(c) that no Demand Registration will be unreasonably withheld or delayedeffected.
(g) If The Company shall be entitled to include for sale in any prospectus or registration statement filed pursuant to a Demand Registration any securities of the Stockholders initiating Company to be sold by the registration under this Section 2 (Company for its own account unless the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so underwriters advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number amount of Registrable Shares securities requested to be included in such registration by offering is sufficiently large to have a material adverse effect on the participating Stockholders (distribution or sales price of the Registrable Securities in any such other proportion as agreed upon by offering in which case the participating Stockholders). Notwithstanding anything else stated hereinCompany will include in such Demand Registration, to the number extent of shares of the amount that the underwriter believes may be sold without causing such material adverse effect, first the Registrable Shares Securities requested to be included in such underwriting shall not be reduced unless all other by the Investor and second, securities are first excluded from offered by the underwritingCompany for its own account.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Investor Rights Agreement (Hebei Iron & Steel Group Co., Ltd.)
Demand Registrations. (a) At Subject to Section 5.3, at any time commencing one year after prior to the date the initial Registration Statement first anniversary of the Closing or following the twenty-month anniversary of the Closing, Parent, on behalf of the Shareholder Group, may, on not more than twelve (12) separate occasions in the aggregate and not more frequently than once during any nine-month period, require the Company is declared effective by the Commission to file a registration statement under the Securities Act, Act in respect of all or a Stockholder or Stockholders holding in the aggregate not less than a majority portion of the Registrable Shares (so long as such request covers Registrable Shares with a Market Value on the date of the Demand Request of at least $300 million if the aggregate Market Value of all Registrable Shares on such date is at least $300 million or, if such Market Value is less than $300 million, so long as such request covers all Registrable Shares), may request, in writing, that by delivering to the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least written notice stating that such right is being exercised, specifying the number of shares of Common Stock issued or issuable upon conversion of to be included in such registration (the Preferred Stock as are reasonably likely shares subject to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice "DEMAND SHARES") and describing the intended method of such proposed registration distribution thereof, which may include an underwritten offering (a "DEMAND REQUEST"). Subject to all Stockholders. Each such Stockholder shall have the rightSection 5.7, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereuponupon receiving a Demand Request, the Company shall (i) use its reasonable best efforts to file as promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, as reasonably practicable a registration must be declared effective and remain effective for at least 120 days (or statement on such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection reasonably deem appropriate (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, PROVIDED that the Company shall not be obligated to effect more than two registrations register any securities on Form S-3 pursuant a "shelf" registration statement or otherwise to this Section 2(c), and further provided that register securities for offer or sale on a continuous or delayed basis) providing for the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice sale of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Demand Shares pursuant to this Section 2, the Company intended method of distribution (ia "DEMAND REGISTRATION") has in good faith, fixed plans to file, within 90 days and (ii) after the filing of an initial version of the time of the requestregistration statement, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all use reasonable best efforts to cause such registration statement to become effectivebe declared effective under the Securities Act as promptly as practicable after the date of filing of such registration statement.
(b) Notwithstanding anything in this Agreement to the contrary, the Company shall be entitled to postpone and delay, for reasonable periods of time, but in no event more than an aggregate of 60 days during any 12-month period (a "BLACKOUT PERIOD"), the filing or effectiveness of any Demand Registration if the Company shall determine that any such filing or the offering of any Registrable Shares would (i) in the good faith judgment of the Board, impede, delay or otherwise interfere with any pending or contemplated material acquisition, corporate reorganization or other similar material transaction involving the Company, (ii) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Company or (iii) in the good faith judgment of the Board, require disclosure of material non-public information (other than information relating to an event described in clauses (i) or (ii) is engaged above) which, if disclosed at such time, would be harmful to the best interests of the Company and its stockholders; PROVIDED, HOWEVER, that the Company shall give written notice to Parent of its determination to postpone or delay the filing of any Demand Registration; and PROVIDED, FURTHER, that in the event that the Company proposes to register Common Stock, whether or not for sale for its own account, during a Blackout Period, the Shareholder Group shall have the right to exercise its rights under Section 5.2 of this Agreement with respect to such registration, subject to the limitations contained in this Agreement on the exercise of such rights. Upon notice by the Company to Parent of any other activity whichsuch determination, the members of the Shareholder Group shall keep the fact of any such notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Common Stock for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration, each prospectus included therein, and any amendment or supplement thereto by it for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, will deliver to the Company any copies then in its possession of the prospectus covering such Registrable Shares.
(c) In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in good faith shall have advised the Company or Parent that, in its opinion, the number of Demand Shares subject to a Demand Request exceeds the number which can be sold in such offering, the Company shall include in such registration the number of Demand Shares that, in the good-faith determination opinion of such managing underwriter or underwriters, can be sold in such offering; PROVIDED that if as a result of any reduction pursuant to this paragraph (c) the aggregate Market Value of the Demand Shares to be so included is less than $300 million, the Shareholder Group may withdraw such Demand Request with respect to all Demand Shares covered thereby and such registration shall not count for the purposes of determining the number of Demand Registrations to which the Shareholder Group is entitled under Section 5.1(a).
(d) In connection with any underwritten offering, the managing underwriter for such Demand Registration shall be selected by Parent, PROVIDED that such managing underwriter shall be a nationally recognized investment banking firm and shall be reasonably acceptable to the Company’s Board of Directors. The Company may, would be adversely affected by the requested registration, then the Company may at its option, provided select a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished nationally recognized investment banking firm reasonably acceptable to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right Parent to delay a request to be exercised by the Company not more than once per registration demandedact as co-managing underwriter.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement Nothing in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations Article V shall affect or supersede any of the issuer transfer restrictions set forth in Article IV hereof or any of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary other provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Demand Registrations. (a) At If at any time commencing one year following the date which is six months after the date the Company's initial Registration Statement public offering, one or more of the Company is declared effective by the Commission under the Securities Act, a Stockholder or Stockholders holding in the holders 4 of an aggregate of not less than a majority 20% of the Registrable Shares, may request, in writing, that Securities then outstanding shall notify the Company effect the registration on Form S-1 in writing that it or Form S-2 (they intend to offer or cause to be offered for public sale all or any successor form) for at least portion of their Registrable Securities, the number of shares of Common Stock issued or issuable upon conversion Company will notify all of the Preferred Stock as are reasonably likely holders of Registrable Securities who would be entitled to result in proceeds, upon registration, notice of at least $5,000,000, based upon a proposed registration under the then-current market priceterms of this Agreement. Upon receipt the written request of any such requestholder after receipt from the Company of such notification, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to either: (A) elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereuponmake a primary offering, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all case the rights of the Registrable Shares included Holders shall be as set forth with respect to a primary offering in such registration statement have actually been sold thereunderSection 2(a) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, and such registration shall be deemed to be a registration under Section 2(a) and not be considered a demand for registration hereunder. In addition, hereunder (in which event the Company shall not be required to effect any cause a registration (other than on Form S-3 or any successor form relating statement requested pursuant to secondary offeringsthis Section 2(b) within six months of to become effective prior to 90 days following the effective date of the registration statement initiated by the Company under Section 2(a)); or (B) file as soon as practicable, and in any other Registration Statement event within 60 days of the Company in which the Stockholders shall have been entitled receipt of such written request, a registration statement, and use its best efforts to join pursuant cause to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter become effective the registration of allsuch Registrable Securities as may be requested by any holders (including the holder or holders giving the initial notice of intent to register hereunder) to be registered under the Securities Act in accordance with the terms of this Section 2(b). Anything herein to the contrary notwithstanding, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than comply with this Section 2(b) on two registrations on Form S-3 occasions only. Notwithstanding the foregoing, if the Company shall furnish to holders requesting a registration statement pursuant to this Section 2(c)2(b) a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, and further provided that the Company shall not it would be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice seriously detrimental to the Company within 20 days after such Stockholder receives his or and its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause stockholders for such registration statement to become effective, or (ii) is engaged in any other activity whichbe effected at such time, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then which event the Company may at its option, provided a certificate from shall have the Chief Executive Officer of the Company reciting right to defer such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and filing for a period of six months thereafter, and, in not more than one hundred and twenty (120) days after receipt of the case request of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, holders; provided that such right to delay a request to shall be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayedtwelve (12) month period.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Serviceware Technologies Inc/ Pa)
Demand Registrations. (ai) At Subject to the provisions set forth in this Section 2(a)(i), at any time commencing one year from and after the date six (6) months after the initial Registration Statement of the Company is declared effective by the Commission under the Securities ActClosing Date, a Stockholder any Holder or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, Holders may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the rightelect, by giving written notice thereof to the Company within 20 days after such Stockholder receives his or its noticeCompany, to elect require the Company to have included in such registration such use its reasonable best efforts to register all or a portion of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, Securities under the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable SharesSecurities Act; provided, however, that the Company shall not be obligated to effect register the Registrable Securities upon such election only if the Registrable Securities to be registered, in the aggregate, total 300,000 or more than two registrations shares of the then-outstanding securities of the class or series to which such Registrable Securities belong; provided, further, that in any event the Company shall be obligated to register such Registrable Securities upon such election only if the Registrable Securities to be registered have a total market value (or, if there is no existing public market, a proposed maximum aggregate offering price to be set forth on Form S-3 the facing page of the applicable registration statement) of at least $2.4 million. Promptly following such election, the Company shall (1) give notice to each other Holder of Registrable Securities of such election, which notice shall set forth the identity of the electing Holders, and (2) use its reasonable best efforts to cause to be declared or become effective under the Securities Act a registration statement providing for the registration of, and the sale in accordance with the intended method or methods of distribution thereof by the electing Holders of, the Registrable Securities. The Company shall be required to cause to become effective pursuant to this Section 2(c)2(a) no more than (i) two (2) registration statements pursuant to demands initiated by TMCT Ventures, L.P. or its successors and further provided that assigns and (ii) three (3) registration statements pursuant to demands initiated by SOFTBANK or its successors and assigns; provided, the Company shall be required to cause to become effective no more than one registration statement in any six month period. Notwithstanding the foregoing, the Company shall not be obligated to effect more than one registration on Form S-3 register Registrable Securities upon any election pursuant to this Section 2(c2(a)(i) if (1) fewer than 180 days have elapsed after the effective date of a registration statement registering newly issued or treasury shares of the Company's common stock for purposes of a primary offering (as defined in Section 2(b)(i) hereof) on a firm commitment underwritten basis, but only if and to the extent that (x) the underwriting agreement entered into in connection with any six month such offering expressly prohibited registration of Registrable Securities upon such election and (y) no period referred to in this sentence, and no postponement referred to in Section 2(a)(iii) hereof, was in effect during the 12 months immediately preceding the commencement of such 180 day period. Upon receipt , unless any Holders having made elections during the previous period or postponement, as the case may be, shall have had the opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the current such period.
(ii) In the event of any such requestregistration of Registrable Securities pursuant to Section 2(a)(i) hereof, the Company shall promptly give not, without the express written notice consent of the Holders of a majority of such proposed Registrable Securities, cause or permit any other securities of the Company or of any other Person (whether such securities are to be issued by the Company, are held in the Company's treasury or are then outstanding and held by other persons) to be covered by such registration statement or otherwise to all Stockholders. Each be included in such Stockholder shall have the rightregistration; provided, however, that any other Holder of Registrable Securities may elect, by giving written notice to such effect to the Company within 20 no later than 15 business days after such Stockholder receives his or its noticethe Company shall have given the notice referred to in clause (1) of Section 2(a)(i), to elect to have such Holder's Registrable Securities included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to registerregistration.
(diii) If at In the time of event that, following any request to register Registrable Shares election pursuant to this Section 22(a)(i) hereof but prior to the filing of a registration statement in respect of such election, (A) the Company (i) has Board of Directors of the Company, in its reasonable judgment and in good faith, fixed plans to file, within 90 days resolves that the filing of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effectiveand the offering of Registrable Securities pursuant thereto would materially interfere with any significant acquisition, corporate reorganization or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to similar transaction involving the Company, and (B) the Company gives the Holders having made such election written notice of such determination (which notice shall include a copy of such information in the written notice to the other Stockholders. In such eventresolution), the right Company shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to postpone for up to 90 days the filing of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares statement otherwise required to be underwrittenprepared and filed by it pursuant to Section 2(a)(i) hereof; provided, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant heretohowever, and the number of shares of Registrable Shares that no such postponement may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership effected if any other postpone ment of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this AgreementSection 2 was in effect during the 12 months immediately preceding the commencement of such postponement, unless any Holders having made elections during the previous postponement shall have had the opportunity to register their Registrable Securities pursuant to an effective registration statement prior to the current postponement.
Appears in 1 contract
Sources: Registration Rights Agreement (Softbank Holdings Inc Et Al)
Demand Registrations. (a) At any time commencing one year after and from time to time (x) the date Summit Investors, or (y) the initial Registration Statement of Founders (respectively, the “Initiating Holders”), may request in writing that the Company is declared effective by the Commission register under the Securities ActAct all or any portion of the Registrable Securities held by such Holders, a Stockholder or Stockholders holding in the having an anticipated aggregate offering price of not less than a majority US$20,000,000; provided that no Registration Statement need be filed with the Commission prior to the later of (i) one hundred and eighty days following the pricing of the Registrable Shares, may request, IPO and (ii) the expiration of any “lock-up agreement” entered into with an underwriter in writing, that connection with the Company effect the registration on Form S-1 or Form S-2 IPO (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market priceunless waived by such underwriter). Upon receipt of any such written request, which shall specify the intended method of distribution thereof, the Company shall promptly give written within ten (10) days deliver notice (the “Demand Notice”) thereof to all Holders (other than the Holders of such proposed registration request, as applicable), if any, who shall then have twenty (20) days to all Stockholdersnotify the Company in writing of their desire to be included in such registration. Each such Stockholder shall have the right, by giving written notice Subject to the provisions of Section 2.5 below, the Company within 20 will use its reasonable best efforts to file a registration statement for such intended method of distribution, as promptly as practicable, but not later than (x) ninety (90) days after such Stockholder receives his or its noticeDemand Notice in the case of a registration with a Long-Form Registration Statement and (y) thirty (30) days after such Demand Notice in the case of a registration with a Short-Form Registration Statement, to elect to have included and in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company each case shall use its reasonable best efforts to cause such registration statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof (subject to effect the registration, on Form S-1 or Form S-2 (or any successor formproviso of the first sentence of this Section 2.1(a), of all Registrable Shares which the Company has been requested to so register).
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of Notwithstanding the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In additionforegoing, the Company shall not be required to effect registration under this Section 2.1: (i) before one hundred eighty (180) days after the effective date of any Registration Statement filed pursuant to Section 2.1(a) (or the later expiration of any extension of any 180-day “lock-up agreement” entered into by the Company or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement in connection with any earnings release or other release of material information pursuant to FINRA Rule 2711(f), to the extent applicable (unless waived by such underwriters)), (ii) before one hundred eighty (180) days after the effective date of a previously effective Registration Statement for an underwritten offering of securities pursuant to a Company-initiated registration (other than pursuant to a registration statement on Form S-3 S-4 or S-8) or a Piggy-Back Underwritten Offering (as defined below), in each case in which the Holders were able to sell seventy-five percent (75%) of the Registrable Securities they requested to be included in such registration (or the later expiration of any successor form relating extension of any 180-day “lock-up agreement” entered into by the Company or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement in connection with any earnings release or other release of material information pursuant to secondary offeringsFINRA Rule 2711(f), to the extent applicable (unless waived by such underwriters)), (iii) within six months of before ninety (90) days after the effective date of any other previously effective Registration Statement for an underwritten offering of securities pursuant to a Company-initiated registration (other than pursuant to a registration statement on Form S-4 or S-8) or a Piggy-Back Underwritten Offering (as defined below) (or the later expiration of any extension of any 90-day “lock-up agreement” entered into by the Company or the Holders of Registrable Securities with any underwriters in connection with such Registration Statement in connection with any earnings release or other release of material information pursuant to FINRA Rule 2711(f), to the extent applicable (unless waived by such underwriters)), or (iv) during the period that is sixty (60) days before the Company’s good faith estimate of the Company in which the Stockholders shall have been entitled to join date of filing of a Company-initiated underwritten registration (other than pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which a registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement statement on Form S-3 (S-4 or any successor form relating to secondary offerings)S-8) or Piggy-Back Underwritten Offering, any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable best efforts to cause such registration statement to be filed and to become effectiveeffective or to cause such Piggy-Back Underwritten Offering to be effected, and provided, further that nothing in this clause (iii) shall derogate from the Company’s obligations under Section 2.4 hereof.
(c) The Company shall be obligated to effect only two (2) registrations on Long-Form Registration Statements for each Founder and two (2) registrations on Long-Form Registration Statements for the Summit Investors as a group under this Section 2.1. An unlimited number of registrations on Short-Form Registration Statements shall be effected by the Company under this Section 2.1.
(d) A registration shall not be counted as “effected” if (i) after effectiveness, the Registration Statement becomes subject to any stop order, injunction or other order of the Commission or other governmental agency prior to the sale of all Registrable Securities to be sold thereunder, (ii) the method of disposition is a firm commitment underwritten public offering and, as a result of an exercise of the underwriters’ cutback provisions in Section 2.3(b), less than seventy-five (75%) of the Registrable Securities requested to be included therein have been sold pursuant thereto; provided, however, that if such registration is the second registration on a Long-Form Registration Statement of the applicable Initiating Holder(s) as described in Section 2.1(c) hereof, then such percentage such be ninety (90%), or (iiiii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then if the Company may at its option, provided shall have withdrawn or prematurely terminated a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, Registration Statement as set forth in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demandedSection 2.5.
(e) In the event that The Registrable Shares are sold pursuant to a Securities covered by any Registration Statement in demanded under this Section 2.1 shall be distributed by means of a firm commitment underwritten offering pursuant unless otherwise agreed to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations in writing by each of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, Founders and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Summit Investors that have requested Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to Securities be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwritingRegistration Statement.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after the date earlier of (i) the initial Registration Statement second anniversary of the Company date hereof or (ii) the date that is declared effective by one hundred and eighty (180) days after the Commission under closing of a firm commitment underwriting of any of the Securities ActCompany's securities, a Stockholder Majority Interest of the Investors may notify the Company that they intend to offer or Stockholders holding cause to be offered for public sale all or any portion of their Registrable Securities in the aggregate manner specified in such request, provided that in the case of a request pursuant to clause (ii) such registration may not less than a majority become effective prior to the date which is six months after the effective date of the Registrable Shares, may request, in writing, that the Company effect the Company's initial registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market pricestatement. Upon receipt of any such request, the Company shall promptly give written deliver notice of such proposed registration request to all Stockholders. Each such Stockholder Persons holding Registrable Securities who shall then have the right, by giving written notice thirty (30) days to notify the Company within 20 days after such Stockholder receives his or its notice, in writing of their desire to elect to have be included in such registration. If the request for registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereuponcontemplates an underwritten public offering, the Company shall state such in the written notice and in such event the right of any Person to participate in such registration shall be conditioned upon their participation in such underwritten public offering and the inclusion of their Registrable Securities in the underwritten public offering to the extent provided herein. The Company will use its reasonable best efforts promptly to expeditiously effect the registration, on Form S-1 or Form S-2 (or any successor form), registration of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included Securities whose holders request participation in such registration statement have actually been sold thereunder) under the Securities Act and to constitute a registration hereunder; provided further, that if after qualify such Registrable Securities for sale under any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Sharesstate blue sky law; provided, however, that the Company shall not be obligated required to effect registration -------- ------- pursuant to a request under this Section 2 more than two registrations on Form S-3 three (3) times for the holders of the Registrable Securities as a group. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2 within one hundred and eighty (180) days after the effective date of a registration statement filed by the Company covering a Qualified Public Offering. The Company may postpone the filing or the effectiveness of any registration statement pursuant to this Section 2(c)2 for a reasonable time period, and further provided that the Company such postponements shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(cexceed ninety (90) days in the aggregate during any six twelve (12) month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which if (i) the Company has been requested to register.
(d) If at advised by legal counsel that such filing or effectiveness would require disclosure of a material financing, acquisition or other corporate transaction, and the time Board of any request to register Registrable Shares pursuant to this Section 2, Directors of the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing determines in good faith all reasonable efforts to cause that such registration statement to become effective, disclosure is not in the best interests of the Company and its stockholders or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer Directors of the Company reciting determines in good faith that there is a valid business purpose or reason for delaying filing or effectiveness. A registration will not count as a requested registration under this Section 2(a) until the registration statement relating to such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised has been declared effective by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected Commission at the request of the Stockholders pursuant to initiating holders; provided, -------- however, that if a majority in interest of the participating holders of ------- Registrable Securities shall request, in writing, that the Company withdraw a registration statement which has been filed under this Section 22(a) but not yet been declared effective, a majority in interest of such holders may thereafter request the Initiating Holders Company to reinstate such Registration Statement, if permitted under the Securities Act, or to file another registration statement, in accordance with the procedures set forth herein.
(as hereinafter definedb) shall have Notwithstanding the right to designate above, if a requested registration involves an underwritten public offering and 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, then the number of securities to be included in such underwritten public offering shall be reduced to a number deemed satisfactory by such managing underwriter, provided that the shares to be -------- excluded shall be determined in the following sequence: (i) first, securities held by any other Persons (other than the Investors holding Registrable Securities) not having registration rights or having contractual, incidental "piggy back" right to include such securities in the registration statement, (ii) second, shares sought to be registered by the Company, (iii) third, Registrable Securities of holders who did not make the original request for registration, and (iv) fourth, Registrable Securities of holders who requested such registration pursuant to Section 2(a), it being understood that no shares shall be registered for the account of the Company or any shareholder other than the Investors unless all Registrable Securities for which Investors have requested registration have been registered. If there is a reduction of the number of Registrable Securities pursuant to clauses (i), (iii) or (iv), such reduction shall be made on a pro rata basis (based upon the aggregate number of shares of Common Stock or Registrable Securities held by the holders in each tranche and subject to the priorities set forth in the preceding sentence).
(c) With respect to a request for registration pursuant to Section 2(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the Investors holding not less than a Majority Interest of the Registrable Securities to be sold in such offering, subject to the approval of the Company's consent, which approval may such consent shall not be unreasonably withheld withheld. 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 delayed.
a transaction to which Rule 145 of the Securities Act is applicable) to become effective within one hundred eighty (g180) If days following the Stockholders initiating the effective date of any registration under required pursuant to this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company or such lesser period as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested consented to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwritingmanaging underwriter.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after Provided the date Blackstone Investors collectively own, directly or indirectly through the initial Registration Statement Partnerships as Class B Assets, at least 5% of the Company is declared effective by Common Stock on a fully diluted basis, upon the Commission under the Securities Act, written request from time to time (a Stockholder "REQUEST") of any Blackstone Investor or Stockholders holding in the aggregate not less than any Affiliate of a majority of the Registrable Shares, may request, in writing, Blackstone Investor that holds Common Stock that the Company effect the registration on Form S-1 under the Securities Act of all or Form S-2 (or any successor form) for at least part of the number of shares of Common Stock issued owned by such Blackstone Investors and Affiliates, directly or issuable upon conversion of indirectly through the Preferred Stock Partnerships as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such requestClass B Assets, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares will as such Stockholder may request in such notice of election. Thereupon, the Company shall expeditiously as practicable use its reasonable best efforts promptly to effect the registrationregistration under the Securities Act of such shares and cause such registration statement to remain effective for a period of not less than 180 days; PROVIDED, on Form S-1 or Form S-2 (or any successor form)HOWEVER, of all Registrable Shares which that the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared three effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join registrations pursuant to this Agreement and in which there Section 3.8(a).
(b) If (i) the Blackstone Investors shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders previously realized at least $45 million of net cash proceeds from the sale of Common Stock in one or more transactions yielding at least a 20% compounded annualized internal rate of return on the entire initial investment by them (or securities exercisable for or convertible into without ascribing any value to any remaining shares of Common Stock held by the Blackstone Investors), (ii) the Blackstone Investors have not sold any shares of Common Stock, either directly or through the Partnerships, within the preceding nine month period and (iii) the Partnerships own at least 5% of the outstanding Common Stock on a fully-diluted basis, then the Partnerships shall have the right to make one written request ("Partnerships' Request") to the Company that the Company effect the registration under the Securities Act of all or part (constituting not less than 5% of outstanding shares) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriterowned by the Partnerships, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after whereupon the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, will as expeditiously as practicable use its reasonable best efforts to effect the registration on Form S-3 (or such successor form), under the Securities Act of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), shares and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and remain effective for a period of six months thereafternot less than 180 days. In addition, and, in if the case of clause (iiBlackstone Investors no longer have any right to make a Request pursuant to Section 3.8(a), for a period not in excess of 90 days from then the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) Partnerships shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration make one additional Partnerships' Request pursuant to this AgreementSection 3.8(b) (without regard to clauses (i), (ii) and (iii)).
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement of If (i) the Company shall receive a written request (specifying that it is declared effective by the Commission under the Securities Act, a Stockholder being made pursuant to this Section 7) from one or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, more Holders that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, file a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings)Form S-3 regardless of its designation) (or, any Stockholder or Stockholders may request if the Company, in writing, Company is not then a registrant entitled at such time to effect the registration on use Form S-3 (or any form to Form S-3 regardless of its designation) to register such shares, a Form S-1 (or any successor formform to Form S-1 regardless of designation) for a public offering of Registrable Shares (whether by underwriting or otherwise) the reasonable anticipated aggregate price to the public of which would equal or exceed $3,000,000 (a “Demand Registration Request”), then the Company shall promptly notify all other Holders of such Stockholders’ request and shall use its reasonable best efforts to cause all Registrable Shares having that Holders, within fifteen (15) days after receipt of any such written notice, have requested be registered to be registered as soon as reasonably practicable thereafter.
(b) Notwithstanding the foregoing, (i) the Company shall not be obligated to effect a registration pursuant to Section 7(a) during the period starting with the date ninety (90) days prior to the Company’s estimated date of filing of, and ending on a date ninety (90) days following the effective date of, a registration statement pertaining to an aggregate underwritten public offering price of at least $1,000,000 (based on securities for the then-current public market price) oraccount of the Company, if lessprovided, all that the Company is actively employing in good faith its commercially reasonable efforts to cause such registration statement to become effective and that the Company’s estimate of the date of filing such Stockholder’s remaining Registrable Sharesregistration statement is made in good faith; provided, however, that the Company shall not file a registration statement upon the request of one or more Holders pursuant to Section 7(a) after ninety (90) days have elapsed after the estimated date of filing of such registration statement pertaining to an underwritten public offering of securities for the account of the Company; and provided, further, that the Company shall only be obligated permitted to effect more than two registrations on Form S-3 delay pursuant to this Section 2(c), and further provided that 7(b)(i) the filing of a registration statement requested to be filed by one or more Holders pursuant to Section 7(a) once in any 12-month period; (ii) the Company shall not be obligated to effect (x) more than one registration three registrations pursuant to Section 7(a) on Form S-3 S-1 (or any successor form) and (y) more than two registrations pursuant to Section 7(a) in any twelve month period, and (iii) if the Company shall furnish to the Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its stockholders for a registration statement to be filed (a “Valid Business Reason”) in the near future, then the Company’s obligation to use its reasonable best efforts to file a registration statement shall be deferred until such Valid Business Reason no longer exists; provided that Company may exercise its right to delay filing a registration statement pursuant to this Section 2(c7(b)(iii) or to suspend the use of a prospectus included in an effective registration statement pursuant to Section 13(f) for an aggregate period not to exceed ninety (90) days in any six 12-month period. Upon receipt of any such request, the The Company shall promptly give written notice of its determination to delay or suspend a registration statement and of the fact that the Valid Business Reason for such proposed delay or suspension no longer exists, in each case, promptly after the occurrence thereof.
(c) If any registration statement pursuant to all Stockholders. Each such Stockholder shall have this Section 7 or any Subsequent Registration (as defined below) ceases to be effective for any reason at any time during the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. ThereuponEffectiveness Period, the Company shall use its reasonable best efforts promptly to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within forty-five (45) days of such cessation of effectiveness amend such registration statement in a manner to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional registration statement, covering all of the Registrable Shares covered by such prior registration statement (a “Subsequent Registration”). If a Subsequent Registration is filed, the Company shall use reasonable best efforts to cause the Subsequent Registration to be declared effective under the Securities Act as soon as practicable after such filing and to keep such Subsequent Registration continuously effective for the remainder of the Effectiveness Period plus the number of days during which the registration statement replaced by the Subsequent Registration ceased to be effective. Notwithstanding anything to the contrary contained herein the filing by the Company of a Subsequent Registration shall not be counted for purposes of limitations on the number of registration statements the Company is required to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested pursuant to registerthis Section 7.
(d) If at the time Company files any shelf registration statement for the benefit of the holders of any request to register Registrable Shares pursuant to this Section 2of its securities other than the Holders, the Company (i) has agrees that it shall include in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement such disclosures as may be required by Rule 430B (referring to become effective, or (ii) is engaged the unnamed selling security holders in any other activity which, in a generic manner by identifying the good-faith determination initial offering of the Company’s Board of Directorssecurities to the Holders) in order to ensure that the Holders may be added to such shelf registration statement, would be adversely affected by the requested registration, then if the Company may so elects, at its option, provided a certificate from later time through the Chief Executive Officer filing of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for prospectus supplement rather than a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demandedpost-effective amendment.
(e) In the event that Registrable Shares are sold pursuant The Holders’ rights to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company7 are in addition to, and the Company shall include such information not in the written notice lieu of, their rights to the other Stockholders. In such event, the right registration under Section 2 of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Investor Rights Agreement (Momenta Pharmaceuticals Inc)
Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement of If the Company is declared effective by the Commission under the Securities Actshall receive from any Holder or group of Holders who, a Stockholder or Stockholders holding in the aggregate not less than a majority collectively, beneficially own at least 50% of the Registrable Shares, may request, in writing, Securities then outstanding a written request that the Company effect the file a registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration statement with respect to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all portion of the Registrable Shares included in Securities (a “Demand Registration Request,” and the registration so requested is referred to herein as a “Demand Registration,” and the sender(s) of such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join request pursuant to this Agreement shall be known as the “Initiating Holder(s)”), then the Company shall, within ten (10) days of the receipt thereof, give written notice (the “Demand Exercise Notice”) of such request to all other Holders, and in which there shall have been effectively registered subject to the limitations of this Section 2.1, use its reasonable best efforts to effect, as soon as practicable, the registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 thereunder if so requested and sold if the Company is then eligible to use such a registration) of all Registrable Shares as Securities that the Holders request to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Sharesbe registered; provided, however, that the Company shall not be obligated required to effect effectuate more than two registrations on Form S-3 Demand Registrations in any twelve (12) month period, it being understood that any underwritten takedown conducted pursuant to this Section 2(c)a shelf registration statement and the filing of a non-underwritten shelf registration statement shall be deemed to constitute and count toward the two permitted Demand Registrations within such twelve (12) month period.
(b) In addition, and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in take any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly action to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.any Demand Registration:
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in during the period starting with the date 60 days prior to its good faithfaith estimate of the date of filing of, fixed plans to file, within and ending on a date 90 days after the effective date of, a Company-initiated registration (other than a registration relating solely to the sale of securities to employees of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares Company pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and a stock option, stock purchase or similar plan or to an SEC Rule 145 transaction), provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or effective;
(ii) is engaged in any other activity which, than in the goodcase of a non-faith determination underwritten shelf registration, where the anticipated offering price, before any underwriting discounts or commissions and any offering-related expenses, is less than $50,000,000 (the “Threshold Amount”); provided, however, that during the Lock-up Period, the Threshold Amount shall not exceed the aggregate amount Holders are permitted to sell at such time pursuant to the terms of the Company’s Board applicable Relationship Agreement;
(iii) in the case of Directors, would be adversely affected by the requested a non-underwritten shelf registration, then where the anticipated offering price, before any underwriting discounts or commissions and any offering-related expenses, is less than $25,000,000;
(iv) if the Company may at its option, provided shall furnish to such Holders a certificate from signed by the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct stating that such request be delayed, in the case good faith judgment of clause the Board, any registration of Registrable Securities should not be made or continued (or sales under a shelf registration statement should be suspended) because such registration (or continued sales under a shelf registration statement) would (i)) materially and adversely interfere with any existing or potential significant financing, during acquisition, corporate reorganization or merger or other material transaction or event involving the course Company or any of its subsidiaries, (ii) require the premature disclosure of material non-public information, the disclosure of which has been determined by the Board to not be in the Company’s registration and for best interests or (iii) render the Company unable to comply with applicable requirements under the Securities Act or the Exchange Act (in each case, a period of six months thereafter, and, in the case of clause (ii“Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Request or suspend sales under an existing shelf registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for a period not in excess of 90 more than 120 days from after the date the Board determines a delay is neededValid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five (5) Business Days after such Valid Business Reason no longer exists, but in no event for more than 120 days after the date the Board determines a Valid Business Reason exists; and the Company shall give written notice to the Participating Holders of its determination to postpone or withdraw a registration statement or suspend sales under a shelf registration statement and of the fact that the Valid Business Reason for such postponement, withdrawal or suspension no longer exists, in each case, promptly after the occurrence thereof; provided, however, that the Company shall not defer its obligation in this manner for more than twice in any 12 month period; or
(v) 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. If the Company shall give any notice of postponement, withdrawal or suspension of any registration statement pursuant to clause (iv) of this Section 2.1(b), the Company shall not, during the period of postponement, withdrawal or suspension, register any Company Shares, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (iv) of this Section 2.1(b), such right Holder will discontinue its disposition of Registrable Securities pursuant to delay such registration statement and, if so directed by the Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration statement filed pursuant to a Demand Registration (whether pursuant to clause (iv) of this Section 2.1(b) or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company shall not be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, not later than five Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than 120 days after the date of the postponement or withdrawal), use its reasonable best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not be withdrawn or postponed pursuant to clause (iv) of this Section 2.1(b).
(i) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration (x) the Registrable Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities, which shall have made a written request to be exercised by the Company not more than once per for inclusion in such registration demandedpursuant to Section 2.2 (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Participating Holder) within ten (10) Business Days after the receipt of the Demand Exercise Notice.
(ii) The Company shall, as expeditiously as possible, but subject to the limitations set forth in this Section 2.1, use its reasonable best efforts to effect such registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution.
(d) In connection with any Demand Registration, the Company shall have the right in its sole discretion to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in connection with such registration and each other managing underwriter for such registration.
(e) In If so requested by the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2Initiating Holder(s), the Company agrees to enter into an underwriting agreement containing customary representations and warranties (together with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating all Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares securities through such underwriting (together with the Companyunderwriting) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. underwriting by the Initiating Holder in its sole discretion.
(f) Any Holder that intends to sell Registrable Securities by means of a shelf registration pursuant to Rule 415 thereunder, shall give the Company five (5) Business Days’ prior notice of any such sale.
(g) Notwithstanding anything else stated hereinin this Agreement to the contrary, no Demand Registration, whether for an underwritten or non-underwritten offering, shall be permitted during the Lock-up Period if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares proposed to be underwritten, then registered exceeds the Initiating amount that Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested are permitted to be included in sell during such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration Lock-up Period pursuant to this Agreementthe applicable Relationship Agreements.
Appears in 1 contract
Sources: Registration Rights Agreement (Aebi Schmidt Holding AG)
Demand Registrations. Upon the request of (a) At any time commencing one year after FPSH, (b) Mr. Romo or (c) the date the initial Registration Statement holders of the Company is declared effective by the Commission under the Securities Act, a Stockholder or Stockholders holding in the aggregate not less than a majority of the Registrable SharesWarrants and shares ▇▇ ▇▇▇▇▇n Stock, may requesttaken together, in writing, that the Company effect the registration on Form S-1 or Form S-2 held by NML and its PS Permitted Transferees at such time (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion each of the Preferred Stock as are reasonably likely parties referred to result in proceedsclauses (a), upon registration(b) and (c), of at least $5,000,000, based upon an "Initiating Party," and the then-current market price. Upon receipt of any such requestparty and/or parties described in clause (c), the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon"NML Initiating Party"), the Company shall use its reasonable best efforts promptly to effect register under the registrationSecurities Act Registrable Securities held by the Initiating Party (including, on Form S-1 or Form S-2 at the election of such Initiating Party, in an underwritten offering) and any other Stockholders participating in such Demand Registration (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or the aggregate expected market value of all such shorter period in which all of the Registrable Shares Securities included in such registration statement have actually been sold thereunder) is greater than or equal to constitute a registration hereunder; provided $50 million, and provided, further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock are not publicly traded, the aggregate expected market value of all Common Stock included in any such registration effected is greater than or equal to $100 million) and bear all expenses in connection with such offering in a manner consistent with Section 3.1.3 and shall enter into such other agreements in furtherance thereof (each such registration pursuant to subsection this Section 3.1.2, a "Demand Registration"), and the Company shall provide customary indemnifications in such instances (ain a manner consistent with the indemnification provision of this Article III) above if to the Initiating Party, other Stockholders included in such registration involves an underwriterand any such underwriters, unless in provided, however, that no offering contemplated hereby shall be completed prior to the opinion three-year anniversary of the managing underwriter Effective Date and provided further that NML and its PS Permitted Transferees shall not have the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times right to initiate a Demand Registration until after the Company becomes eligible occurrence of an IPO. FPSH shall have the right to file a Registration Statement on Form S-3 (or any successor form relating initiate up to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Sharessix Demand Registrations pursuant to this Section 3.1.2; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 a Demand Registration within nine months of the
1. Together, the Romo Persons shall have the right to initiate an aggregate of four Demand Registrations pursuant to this Section 2(c)3.1.2; provided, and further provided however, that the Company shall not be obligated to effect more than one a Demand Registration within nine months of the effectiveness of another registration on Form S-3 pursuant to under this Section 2(c) in any six month period3.1. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the The NML Initiating Holders (as hereinafter defined) Party shall have the right to designate initiate an aggregate of two Demand Registrations; provided, however, that the managing underwriter in any underwritten offering, subject Company shall not be obligated to the approval effect a Demand Registration within nine months of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the effectiveness of another registration under this Section 2 (3.1. A registration shall not count as a Demand Registration unless and until the “Initiating Holders”) intend to distribute registration statement relating thereto has been declared effective by the Registrable Shares covered SEC and not withdrawn. If any Demand Registration requested by their request by means FPSH is in the form of an underwritingunderwritten offering, they FPSH shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with designate the underwriter or underwriters selected for to be utilized in connection with such underwriting. Notwithstanding anything else stated hereinoffering, provided, however, that if the ARG Trust or the Rights Holder participates in the offering, such underwriter advises or underwriters shall be reasonably acceptable to Mr. Romo. If the Initiating Holders Demand Registration requested by a Romo Person is in writing that market factors require a limitation ▇▇▇ ▇▇▇m of the number of shares an underwritten offering, Mr. Romo shal▇ ▇▇signate an underwriter or underwriters to be underwrittenutilize▇ ▇▇ ▇▇▇nection with such offering, then provided, however, that if FPSH participates in the offering, such underwriter or underwriters shall be reasonably acceptable to FPSH. If the Demand Registration requested by the NML Initiating Holders shall so advise all other holders Party is in the form of Registrable Shares which would otherwise be an underwritten pursuant heretooffering, and the Stockholder proposing to sell the largest number of shares of Registrable Shares Common Stock shall designate an underwriter or underwriters to be utilized in connection with such offering, provided, however, that may be included in the underwriting such underwriter or underwriters shall be allocated pro rata among all participating Stockholders based upon their total ownership of reasonably acceptable to the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwritingCompany.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Demand Registrations. (a) At If the Company shall receive from any Holder or group of Holders holding at least 25% of the then outstanding Registrable Securities, at any time commencing one year after the date the initial Registration Statement closing of the Company is declared effective by the Commission under the Securities ActMerger, a Stockholder or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, written request that the Company effect file a registration statement with respect to Registrable Securities (a “Demand Registration Request,” and the registration on Form S-1 or Form S-2 (or any successor formso requested is referred to herein as a “Demand Registration,” and the sender(s) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement shall be known as the “Initiating Holder(s)”), then the Company shall, within five days of the receipt thereof, give written notice (the “Demand Exercise Notice”) of such request to all other Holders, and in which there shall have been effectively registered subject to the limitations of this Section 2.1, use its reasonable best efforts to effect, as soon as practicable, the registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to Rule 415 thereunder if so requested and sold if the Company is then eligible to use such a registration) of all Registrable Shares as Securities that the Holders request to be registered. There is no limitation on the number of Demand Registrations pursuant to this Section 2.1 which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant is obligated to subsection (a) above if such registration involves an underwritereffect. However, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated take any action to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.Demand Registration:
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in during the period starting with the date 15 days prior to its good faithfaith estimate of the date of filing of, fixed plans to file, within and ending on a date 90 days after the effective date of, a Company-initiated registration (other than a registration relating solely to the sale of securities to employees of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares Company pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and a stock option, stock purchase or similar plan or to an SEC Rule 145 transaction), provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or ;
(ii) where the anticipated offering price, before any underwriting discounts or commissions and any offering-related expenses, is engaged in any other activity which, in equal to or less than $50,000,000 or the good-faith determination aggregate shares represent at least 5.0% of the Company’s Board Company Shares outstanding as of Directors, would be adversely affected by the requested registration, then Closing of the Merger;
(iii) if the Company may at its option, provided shall furnish to such Holders a certificate from signed by the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct stating that such request be delayed, in the case good faith judgment of clause the Board, any registration of Registrable Securities should not be made or continued (or sales under a shelf registration statement should be suspended) because (i)) such registration (or continued sales under a shelf registration statement) would materially interfere with a material financing, during acquisition, corporate reorganization or merger or other material transaction or event involving the course Company or any of its subsidiaries or (ii) the Company is in possession of material non-public information, the disclosure of which has been determined by the Board to not be in the Company’s registration and for best interests (in either case, a period of six months thereafter, and, in the case of clause (ii“Valid Business Reason”), then (x) the Company may postpone filing a registration statement relating to a Demand Registration Request or suspend sales under an existing shelf registration statement until five Business Days after such Valid Business Reason no longer exists, but in no event for a period not in excess of more than 90 days from after the date the Board determines a delay is neededValid Business Reason exists and (y) in case a registration statement has been filed relating to a Demand Registration Request, if the Valid Business Reason has not resulted from actions taken by the Company, the Company may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until five Business Days after such Valid Business Reason no longer exists, but in no event for more than 90 days after the date the Board determines a Valid Business Reason exists; and the Company shall give written notice to the Participating Holders of its determination to postpone or withdraw a registration statement or suspend sales under a shelf registration statement and of the fact that the Valid Business Reason for such postponement, withdrawal or suspension no longer exists, in each case, promptly after the occurrence thereof; provided, however, that the Company shall not defer its obligation in this manner for more than 90 days in any 12 month period; or
(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. If the Company shall give any notice of postponement, withdrawal or suspension of any registration statement pursuant to clause (iii) of this Section 2.1(a), the Company shall not, during the period of postponement, withdrawal or suspension, register any Company Shares, other than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent registration form then in effect). Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company that the Company has determined to withdraw any registration statement pursuant to clause (iii) of this Section 2.1(a), such right Holder will discontinue its disposition of Registrable Securities pursuant to delay a request to be exercised such registration statement and, if so directed by the Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. If the Company shall have withdrawn or prematurely terminated a registration statement filed pursuant to a Demand Registration (whether pursuant to clause (iii) of this Section 2.1(a) or as a result of any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court), the Company shall not more be considered to have effected an effective registration for the purposes of this Agreement until the Company shall have filed a new registration statement covering the Registrable Securities covered by the withdrawn registration statement and such registration statement shall have been declared effective and shall not have been withdrawn. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, not later than once per five Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than 90 days after the date of the postponement or withdrawal), use its reasonable best efforts to effect the registration demandedunder the Securities Act of the Registrable Securities covered by the withdrawn or postponed registration statement in accordance with Section 2.1 (unless the Initiating Holders shall have withdrawn such request, in which case the Company shall not be considered to have effected an effective registration for the purposes of this Agreement), and such registration shall not be withdrawn or postponed pursuant to clause (iii) of this Section 2.1(a).
(ei) In The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration (x) the event that Registrable Shares are sold Securities of the Initiating Holders and (y) the Registrable Securities of any other Holder of Registrable Securities, which shall have made a written request to the Company for inclusion in such registration pursuant to a Registration Statement in a firm commitment underwritten offering pursuant Section 2.2 (which request shall specify the maximum number of Registrable Securities intended to this Section 2, be disposed of by such Participating Holder) within 30 days after the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations receipt of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuerDemand Exercise Notice (or 15 days if, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders Initiating Holders, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3).
(ii) The Company shall, as expeditiously as possible, but subject to the limitations set forth in this Section 2.1, use its reasonable best efforts to (x) effect such registration under the Securities Act (including, without limitation, by means of a shelf registration pursuant to this Section 2Rule 415 under the Securities Act if so requested and if the Company is then eligible to use such a registration) of the Registrable Securities which the Company has been so requested to register, for distribution in accordance with such intended method of distribution, including a distribution to, and resale by, the Initiating members or partners of a Holder (a “Partner Distribution”) and (y) if requested by the Majority Participating Holders, obtain acceleration of the effective date of the registration statement relating to such registration.
(iii) Notwithstanding anything contained herein to the contrary, the Company shall, at the request of any Holder seeking to effect a Partner Distribution, file any prospectus supplement or post-effective amendments and otherwise take any action necessary to include therein all disclosure and language deemed necessary or advisable by such Holder if such disclosure or language was not included in the initial registration statement, or revise such disclosure or language if deemed necessary or advisable by such Holder, including filing a prospectus supplement naming the Holders, partners, members and shareholders to the extent required by law, to effect such Partner Distribution.
(c) In connection with any Demand Registration, the Majority Participating Holders (as hereinafter defined) shall have the right to designate the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement, the “Manager”) in any underwritten offeringconnection with such registration and each other managing underwriter for such registration, in each case subject to the approval consent of the Company, which approval may not be unreasonably withheld or delayedwithheld.
(gd) If so requested by the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwritingHolder(s), they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders (together with all Holders proposing to distribute their Registrable Shares securities through such underwriting (together with the Companyunderwriting) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or Company in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwritingits sole discretion.
(he) Only Common Stock may be included in Any Holder that intends to sell Registrable Securities by means of a shelf registration pursuant to this AgreementRule 415 thereunder, shall give the Company two days’ prior notice of any such sale.
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after Provided the date Blackstone Investors collectively own, directly or indirectly through the initial Registration Statement Partnerships as Class B Assets, at least 5% of the Company is declared effective by Common Stock on a fully diluted basis, upon the Commission under the Securities Act, written request from time to time (a Stockholder "Request") of any Blackstone Investor or Stockholders holding in the aggregate not less than any Affiliate of a majority of the Registrable Shares, may request, in writing, Blackstone Investor that holds Common Stock that the Company effect the registration on Form S-1 under the Securities Act of all or Form S-2 part (constituting not less than 5% of outstanding shares) of the shares of Common Stock owned by such Blackstone Investors and Affiliates, directly or indirectly through the Partnerships as Class B Assets, the Company will as expeditiously as practicable file a registration statement and use its reasonable best efforts to effect the registration under the Securities Act and the "Blue Sky" laws of such jurisdictions as any successor form) for at least the number holder of shares of Common Stock issued being registered under such registration or issuable upon conversion of the Preferred Stock as are any underwriter, if any, reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice requests of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in shares and cause such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly statement to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter a period in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other less than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares180 days; provided, however, that the Company shall not be obligated required to effect more than two three effective registrations on Form S-3 pursuant to this Section 2(c3.8(a); and provided, further, that the Company shall not be required to effect a registration pursuant to this Section 3.8(a) during the 180 days following consummation of an Initial Public Offering; and provided, further, that neither of the two 5% requirements set forth in this sentence will be applicable to a Request to the extent that the Blackstone Investors were subject to cutbacks pursuant to Section 3.7(b) or Section 3.8(h) in their immediately preceding Transfer of Common Stock that resulted in them owning in the aggregate less than 5% of the Common Stock on a fully diluted basis (and therefore being unable to meet such requirements).
(b) If (i) the Blackstone Investors shall have previously realized at least $45 million of net cash proceeds from the sale of Common Stock in one or more transactions yielding at least a 20% compounded annualized internal rate of return on the entire initial investment by them (without ascribing any value to any remaining shares of Common Stock held by the Blackstone Investors), (ii) the Blackstone Investors have not sold any shares of Common Stock, either directly or through the Partnerships, within the preceding 180-day period and further (iii) the Partnerships (as Class A Assets) and the Veritas Investors own at least 5% of the outstanding Common Stock on a fully diluted basis, then the Veritas Investors and the Partnerships (acting pursuant to a determination by the Veritas Investors) shall have the right to make one written request to the Company (a "Partnerships' Request") that the Company effect the registration under the Securities Act of all or part (constituting not less than 5% of outstanding shares) of the shares of Common Stock owned by the Partnerships and the Veritas Investors, whereupon the Company will as expeditiously as practicable file a registration statement and use its reasonable best efforts to effect the registration under the Securities Act and the "Blue Sky" laws of such jurisdictions as any holder of shares of Common Stock being registered under such registration or any underwriter, if any, reasonably requests of such shares and cause such registration statement to remain effective for a period of not less than 180 days; provided that neither of the two 5% requirements set forth in this sentence will be applicable to a Request to the extent that the Veritas Investors and/or the Partnerships (with respect to Class A Assets) were subject to cutbacks pursuant to Section 3.7(b) or Section 3.8(h) in their immediately preceding Transfer of Common Stock that resulted in them owning in the aggregate less than 5% of the Common Stock on a fully diluted basis (and therefore being unable to meet such requirements). In addition, commencing 180 days after consummation of an Initial Public Offering, if the Veritas Investors and the Partnerships own in the aggregate at least 5% of the outstanding Common Stock on a fully diluted basis, then the Veritas Investors and the Partnerships (acting pursuant to a determination of the Veritas Investors) shall have the right to make one additional Partnerships' Request to the Company that the Company effect the registration under the Securities Act of all or part (constituting not less than 5% of outstanding shares) of the shares of Common Stock owned by the Veritas Investors and the Partnerships, whereupon the Company will as expeditiously as practicable use its reasonable best efforts to effect the registration under the Securities Act of such shares and cause such registration statement to remain effective for a period of not less than 180 days; provided that neither of the two 5% requirements set forth in this sentence will be applicable to a Request to the extent that the Veritas Investors and/or the Partnerships (with respect to Class A Assets) were subject to cutbacks pursuant to Section 3.7(b) or Section 3.8(h) in their immediately preceding Transfer of Common Stock that resulted in them owning in the aggregate less than 5% of the Common Stock on a fully diluted basis (and therefore being unable to meet such requirements); and provided, further, that if an Equityholder other than a Partnership or a Veritas Investor is an Initiating Party, the Partnerships and the Veritas Investors may make a Partnerships' Request in connection with such registration notwithstanding the 180 day requirement set forth in this sentence, and thereafter such 180 day requirement will no longer apply to Partnerships' Requests. In addition, if the Blackstone Investors no longer have any right to make a Request pursuant to Section 3.8(a), then the Veritas Investors and the Partnerships (with respect to Class A Assets) shall have the right to make one additional Partnerships' Request pursuant to this Section 3.8(b) (without regard to clauses (i), (ii) and (iii) of the first sentence hereof). Notwithstanding the foregoing, the Company shall not be required to commence a registration pursuant to this paragraph (b) within 180 days following the effectiveness of a registration by the Company (A) pursuant to this paragraph (b) or (B) which entitled the Veritas Investors to "piggy-back" rights pursuant to Section 3.7 hereof (provided that the Veritas Investors were permitted to sell all of the shares they requested pursuant to such piggy-back rights).
(c) Commencing 180 days after consummation of an Initial Public Offering of the Company's Common Stock, if the USX Investors own at least 5% of the outstanding Common Stock on a fully diluted basis at the time of each such request, then the USX Investors shall have the right to make three written requests (each a "USX Request") to the Company that the Company effect the registration under the Securities Act and the "Blue Sky" laws of such jurisdictions as any holder of shares of Common Stock being registered under such registration or any underwriter, if any, reasonably requests of all or part (constituting not less than 5% of outstanding shares) of the shares of Common Stock owned by the USX Investors, whereupon the Company will as expeditiously as practicable file a registration statement and use its reasonable best efforts to effect the registration under the Securities Act of such shares and cause such registration statement to remain effective for a period of not less than 180 days or longer if so required pursuant to Section 3.8(h) hereof; provided that the Company shall not be obligated required to effect more than one commence a registration on Form S-3 pursuant to this paragraph (c) within 180 days following the effectiveness of a registration by the Company (A) pursuant to this paragraph (c) or (B) which entitled the USX Investors to "piggy-back" rights pursuant to Section 2(c3.7 hereof (provided that the USX Investors were permitted to sell all of the shares they requested pursuant to such piggy-back rights); and provided, further, that neither of the two 5% requirements set forth in this sentence will be applicable to a USX Request to the extent that the USX Investors were subject to cutbacks pursuant to Section 3.7(b) or Section 3.8(h) in any six month period. Upon receipt their immediately preceding Transfer of any Common Stock that resulted in them owning in the aggregate less than 5% of the Common Stock on a fully diluted basis (and therefore being unable to meet such requestrequirements); and provided, further, that if an Equityholder other than a USX Investor is an Initiating Party, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included USX Investors may make a USX Request in connection with such registration notwithstanding the 180 day requirement set forth in the first clause of this sentence, and thereafter such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly 180 day requirement will no longer apply to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to registerUSX Requests.
(d) If Commencing 180 days after consummation of an Initial Public Offering of the Company's Common Stock, if the Kobe Investors own at least 5% of the outstanding Common Stock on a fully diluted basis at the time of any request each such request, then the Kobe Investors will have the right to register Registrable Shares pursuant make three written requests (each a "Kobe Request") to this Section 2, the Company that the Company effect the registration under the Securities Act and the "Blue Sky" laws of such jurisdictions as any holder of shares of Common Stock being registered under such registration or any underwriter, if any, reasonably requests of all or part (iconstituting not less than 5% of outstanding shares) has in good faith, fixed plans to file, within 90 days of the time shares of Common Stock owned by the requestKobe Investors, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and whereupon the Company is actively employing in good faith all will as expeditiously as practicable file a registration statement and use its reasonable best efforts to effect the registration under the Securities Act of such shares and cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and remain effective for a period of six months thereafter, and, in not less than 180 days; provided that the case Company will not be required to commence a registration pursuant to this paragraph (d) within 180 days following the effectiveness of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised registration by the Company not more (A) pursuant to this paragraph (d) or (B) which entitled the Kobe Investors to "piggy-back" rights pursuant to Section 3.7 hereof (provided that the Kobe Investors were permitted to sell all of the shares they requested pursuant to such piggy-back rights); and provided, further, that neither of the two 5% requirements set forth in this sentence will be applicable to a Kobe Request to the extent that the Kobe Investors were subject to cutbacks pursuant to Section 3.7(b) or Section 3.8(h) in their immediately preceding Transfer of Common Stock that resulted in them owning in the aggregate less than once per 5% of the Common Stock on a fully diluted basis (and therefore being unable to meet such requirements); and provided, further, that if an Equityholder other than a Kobe Investor is an Initiating Party, the Kobe Investors may make a Kobe Request in connection with such registration demandednotwithstanding the 180 day requirement set forth in the first clause of this sentence, and thereafter such 180 day requirement will no longer apply to Kobe Requests.
(e) In Commencing 180 days after consummation of an Initial Public Offering of the event Company's Common Stock, if the FirstEnergy Investors own at least 5% of the outstanding Common Stock on a fully diluted basis at the time of each such request, then the FirstEnergy Investors will have the right to make one written request (a "FirstEnergy Request") to the Company that Registrable Shares are sold pursuant the Company effect the registration under the Securities Act and the "Blue Sky" laws of such jurisdictions as any holder of shares of Common Stock being registered under such registration or any underwriter, if any, reasonably requests of all or part (constituting not less than 5% of outstanding shares) of the shares of Common Stock owned by the FirstEnergy Investors, whereupon the Company will as expeditiously as practicable file a registration statement and use its reasonable best efforts to effect the registration under the Securities Act of such shares and cause such registration statement to remain effective for a Registration Statement in period of not less than 180 days; provided that the Company will not be required to commence a firm commitment underwritten offering registration pursuant to this Section 2, paragraph (d) within 180 days following the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations effectiveness of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification a registration by the Company (A) pursuant to this paragraph (e) or (B) which entitled the FirstEnergy Investors to "piggy-back" rights pursuant to Section 3.7 hereof (provided that the FirstEnergy Investors were permitted to sell all of the underwriters shares they requested pursuant to such piggy-back rights); and provided, further, that neither of the two 5% requirements set forth in this sentence will be applicable to a Kobe Request to the extent that the FirstEnergy Investors were subject to cutbacks pursuant to Section 3.7(b) or Section 3.8(h) in their immediately preceding Transfer of Common Stock that resulted in them owning in the aggregate less than 5% of the Common Stock on a fully diluted basis (and therefore being unable to meet such offeringrequirements); and provided, further, that if an Equityholder other than a FirstEnergy Investor is an Initiating Party, the FirstEnergy Investors may make a FirstEnergy Request in connection with such registration notwithstanding the 180 day requirement set forth in the first clause of this sentence, and thereafter such 180 day requirement will no longer apply to FirstEnergy Requests.
(f) In the case Promptly upon receipt of any request for a demand registration effected at pursuant to paragraphs (a), (b), (c), (d) or (e) of this Section 3.8 (but in no event more than five (5) Business Days thereafter), the Company shall serve written notice (a "Demand Notice") of any such registration request to all holders of shares of Common Stock eligible for registration pursuant to Section 3.7, and the Stockholders Company shall include (subject to provisions of subsection (k) hereof) in such registration shares of Common Stock eligible for registration pursuant to Section 3.7 with respect to which the Company has received written requests for inclusion therein within ten (10) Business Days after the Demand Notice has been given to it (subject to the other provisions of this Section 3.8). Thereafter, the Company may elect to include in such registration additional shares of Common Stock to be issued by the Company. All requests made pursuant to this Section 2, the Initiating Holders (as hereinafter defined3.8(f) shall have specify the right aggregate amount of shares of Common Stock to designate be registered and the managing underwriter in any underwritten offering, subject to the approval intended method of the Company, which approval may not be unreasonably withheld or delayeddistribution of such shares.
(g) If the Stockholders initiating Initiating Party so elects, the offering of shares of Common Stock pursuant to such demand registration under shall be in the form of an underwritten offering. If any offering pursuant to a demand registration involves an underwritten offering, the Initiating Party shall have the right to select the managing underwriter or underwriters to administer the offering: provided that such managing underwriter shall be reasonably acceptable to the Company; and provided, further that the Company shall have the right to select one co-managing underwriter reasonably acceptable to such Initiating Party for any such underwritten offering.
(h) If a registration pursuant to this Section 2 (3.8 involves an underwritten offering and the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so managing underwriter or underwriters in good faith advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwrittenthat, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant heretoin their opinion, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares Common Stock requested to be included in such registration by exceeds the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the largest number of shares of Registrable Shares Common Stock which can be sold in such offering without having an adverse effect on such offering (including, but not limited to, the price at which the shares of Common Stock can be sold), then the Company will include in such registration the shares of Common Stock sought to be registered therein according to the following order of priority: (i) first, the shares of Common Stock that each holder that is a member of a Demand Registration Group has requested to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.Section 3.8 or pursuant to other demand registration rights granted by the Company, allocated pro rata among such members of the Demand Registration Group based on their respective Beneficial Ownership on a fully diluted basis, (ii) second, the shares of Common Stock that holders of Common Stock have requested be included in such registration pursuant to Section 3.7(a) or pursuant to other piggy-back registration rights granted by the Company, allocated pro rata among
Appears in 1 contract
Demand Registrations. (a) At If at any time commencing one year after December 31, 1998, -------------------- and prior to January 1, 2006, the date the initial Registration Statement holder(s) of at least twenty-five percent (25%) of the Registrable Securities shall notify the Company is declared effective by in writing that such holders intend to offer or cause to be offered for sale at least twenty- five percent (25%) of such Registrable Securities and shall request the Commission Company to cause such Registrable Securities to be registered under the Securities Act, a Stockholder or Stockholders holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, that the Company effect will use its best efforts as soon as practicable thereafter to register such Registrable Securities (together with any other Registrable Securities requested by the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely holders thereof to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have be included in such registration such pursuant to Section 5.3 within 15 days after receipt of its Registrable Shares as such Stockholder may request in such a notice of election. Thereupon, from the Company pursuant to Section 5.3) in accordance with the registration procedures set forth in Section 5.5. hereof. Such rights to require registration shall use its best efforts promptly be in addition to effect the registrationrights of the holders under Sections 5.3 and 5.5 and shall be available to holders, acting pursuant to this Agreement, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection a cumulative total of two (a2) aboveoccasions; provided, however, that subject each such registration right shall be deemed to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in have been used only upon such registration statement have actually been sold thereunder) to constitute becoming and remaining effective in accordance with the provisions hereof. The Company shall, within five days of receipt of a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand request for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriterSection 5.4, unless in the opinion of the managing underwriter the registration of all, or part notify each holder of such shares would materially request and adversely affect the offering contemplated by permit each holder to join such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Sharesrequest; provided, howeverthat such holder, that within 15 days of receipt of such notification, so indicates in writing to the Company. Notwithstanding the foregoing, the Company shall not be obligated to effect more than two registrations on Form S-3 a registration pursuant to this Section 2(c)5.4 during the period starting with the date thirty (30) days prior to the Company's estimated date of filing of, and further ending on a date three (3) months following the effective date of; a registration statement pertaining to an underwritten public offering of securities for the account of the Company provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in effective and that the good-faith determination Company's estimate of the Company’s Board date of Directorsfiling such registration statement is made in good faith; provided, would be adversely affected by the requested registrationhowever, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting that no such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised statements filed by the Company not shall preclude the holders of the Registrable Securities from exercising a registration right hereunder this Section 5.4 for more than once per registration demanded90 days.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Series a Cumulative Convertible Preferred Stock Purchase Agreement (Sunbelt Nursery Group Inc)
Demand Registrations. (a) At any time commencing one year after following the OFFERING and prior to a date the initial Registration Statement of on which the Company is declared effective shall have obtained a written opinion of legal counsel reasonably satisfactory to PepsiCo and addressed to the Company and the Holders to the effect that the Shares may be publicly offered for sale in the United States by the Commission Holders without restriction as to manner of sale and amount of securities sold and without registration or other restriction under the Securities ActAct (such period being the "DEMAND PERIOD"), the Holders shall have the right to require the Company to file a Stockholder registration statement under the Securities Act in respect of all or Stockholders holding in the aggregate not less than a majority portion of their Shares (so long as such request covers at least 2% of the Registrable Shares, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion then outstanding), by delivering to the Company written notice stating that such right is being exercised, specifying the number of the Preferred Stock Shares to be included in such registration statement and describing the intended method of distribution thereof (a "DEMAND REQUEST"). As promptly as are reasonably likely to result practicable, but in proceedsno event later than forty-five (45) days (one hundred twenty (120) days, upon registration, of at least $5,000,000, based upon if the then-current market price. Upon receipt of any such requestapplicable registration form is other than Form S-3) after the Company receives a Demand Request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have file with the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall SEC and thereafter use its best efforts promptly to effect cause to be declared effective, a registration statement (including, without limitation, by means of a shelf registration pursuant to Rule 415 under the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which Securities Act if so requested and if the Company has been requested is then eligible to so registeruse such a registration)(a "DEMAND REGISTRATION") providing for the registration of such number of Shares as the Holders shall have demanded be registered for distribution in accordance with their intended method of distribution.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period Anything in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due this Agreement to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In additioncontrary notwithstanding, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant postpone and delay, for a reasonable period of time, not to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock exceed one hundred twenty (or securities exercisable for or convertible into shares of Common Stock120) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless days in the opinion case of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company clauses (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity whichbelow, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, or sixty (60) days in the case of clause (iii) below (each a "BLACKOUT PERIOD"), the filing of any Demand Registration if the Company shall determine that any such filing or the offering of any Shares would (i) in the good faith judgment of the Board, materially impede, delay or otherwise interfere with any pending or contemplated material acquisition, corporate reorganization or other similar material transaction involving the Company, (ii) based upon advice from the Company's investment banker or financial advisor, materially adversely affect any pending or contemplated financing or offering or sale of any class of securities by the Company, or (iii) in the good faith judgment of the Board require premature disclosure of material non-public information (other than information relating to an event described in clause (i) or (ii) of this subsection (b)) which, if disclosed at such time, would be materially harmful to the interests of the Company and its stockholders; PROVIDED, HOWEVER, that in the case of a Blackout Period pursuant to clause (i) or (ii) above, the Blackout Period shall earlier terminate upon the completion or abandonment of the relevant securities offering or material sale, financing, acquisition, corporate reorganization or other similar material transaction; and PROVIDED, FURTHER, that in the case of a Blackout Period pursuant to clause (iii) above, the Company shall give written notice of its determination to postpone or delay the filing of any Demand Registration and in the case of clause (iii) above, the Blackout Period shall earlier terminate upon public disclosure by the Company of such material non-public information or such time as such material non-public information shall be publicly disclosed without breach by any Holder; and PROVIDED, FURTHER, that in the case of a Blackout Period pursuant to clause (i), during (ii) or (iii) above, the course Company shall furnish to each Holder a certificate of an executive officer of the Company’s registration Company to the effect that an event permitting a Blackout Period has occurred and for a to the extent practicable, an approximation of the period of six months thereafterthe anticipated delay. Notwithstanding anything herein to the contrary, the Company shall not exercise pursuant to clause (i) and (ii) of the preceding sentence the right to postpone or delay the filing of any Demand Registration more than once in any twelve (12) month period or more than twice pursuant to clause (iii) of the preceding sentence in any twelve (12) month period. Upon notice by the Company to the Holders of any such determination, each of the Holders covenants that it shall keep the fact of any such notice strictly confidential, and, in the case of a Blackout Period pursuant to clause (ii)iii) above or Section 2.1(c) below, promptly halt any offer, sale, trading or transfer by it or any of its Affiliates of any shares for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration, each prospectus included therein, and any amendment or supplement thereto by it and any of its Affiliates for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, will deliver to the Company any copies then in such Holder's possession of the prospectus covering such Shares that was in effect at the time of receipt of such notice. After the expiration of any Blackout Period and without further request from the Holders, the Company shall effect the filing of the relevant Demand Registration and shall use its best efforts to cause any such Demand Registration to be declared effective as promptly as practicable unless the Holders shall have, prior to the effective date of such Demand Registration, withdrawn in writing their initial request.
(c) Anything in this Agreement to the contrary notwithstanding, in case a Demand Registration has been filed, if a transaction of the type specified in Section 2.1(b)(i) has occurred, the Company may cause such Demand Registration to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such Demand Registration for a reasonable period of time, not to exceed the Blackout Period applicable to Section 2.1(b)(i).
(d) The Holders may withdraw a Demand Request in excess of 90 days from their discretion or in circumstances including, but not limited to, the date the Board determines a delay is needed, such right to delay a request to be exercised by following: if (i) the Company is in material breach of its obligations hereunder and has not more than once per registration demandedcured such breach after having received notice thereof and a reasonable opportunity to do so or (ii) the withdrawal occurs during a Blackout Period.
(e) In the event that Registrable Shares are sold pursuant The Company may elect to a Registration Statement include in a firm commitment underwritten offering any registration statement filed pursuant to this Section 22.1 any Shares to be issued by it or held by any of its subsidiaries or by any Other Holders only to the extent such Shares are offered and sold pursuant to, and on the Company agrees terms and subject to enter into an the conditions of, any underwriting agreement containing customary representations or distribution arrangements entered into or effected by the Holders and warranties with respect only to the business extent the managing underwriter thereof does not reasonably and operations in good faith advise the Holders prior to the consummation of any Demand Registration that the issuer inclusion in such registration statement of the securities being registered and customary covenants and agreements any such Common Stock to be performed by such issuer, including without limitation customary provisions with respect to indemnification issued by the Company or sold by any of its subsidiaries or any Other Holder will not create a substantial risk that the price per share of Common Stock that the Holders will derive from such Demand Registration will be adversely affected or that the number of Shares sought to be registered (including any Shares sought to be registered at the request of the underwriters of such offeringCompany and any Other Holder and those sought to be registered by the Holders) is a greater number than can reasonably be sold.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the The managing underwriter in or underwriters for any underwritten offeringDemand Registration shall be selected by PepsiCo, subject to the approval PROVIDED THAT such managing underwriter or underwriters shall be of the Companyrecognized national standing, which approval may not and such underwriters' commissions shall be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request reasonably satisfactory to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Pepsi Bottling Group Inc)
Demand Registrations. (a) At Subject to Section 5.3, at any time commencing one year after prior to the date the initial Registration Statement six-month anniversary of the Closing or following the fourteen-month anniversary of the Closing, Parent, on behalf of the Shareholder Group, may, on not more than twelve (12) separate occasions in the aggregate and not more frequently than once during any nine-month period, require the Company is declared effective by the Commission to file a registration statement under the Securities Act, Act in respect of all or a Stockholder or Stockholders holding in the aggregate not less than a majority portion of the Registrable Shares (so long as such request covers Registrable Shares with a Market Value on the date of the Demand Request of at least $300 million if the aggregate Market Value of all Registrable Shares on such date is at least $300 million or, if such Market Value is less than $300 million, so long as such request covers all Registrable Shares), may request, in writing, that by delivering to the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least written notice stating that such right is being exercised, specifying the number of shares of Common Stock issued or issuable upon conversion of to be included in such registration (the Preferred Stock as are reasonably likely shares subject to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice "Demand Shares") and describing the intended method of such proposed registration distribution thereof, which may include an underwritten offering (a "Demand Request"). Subject to all Stockholders. Each such Stockholder shall have the rightSection 5.7, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereuponupon receiving a Demand Request, the Company shall (i) use its reasonable best efforts to file as promptly to effect the registration, as reasonably practicable a registration statement on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which such form as the Company has been requested may reasonably deem appropriate (provided that the Company shall not be obligated to so registerregister any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) providing for the registration of the sale of such Demand Shares pursuant to the intended method of distribution (a "Demand Registration") and (ii) after the filing of an initial version of the registration statement, use reasonable best efforts to cause such registration statement to be declared effective under the Securities Act as promptly as practicable after the date of filing of such registration statement.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period Notwithstanding anything in which all of the Registrable Shares included in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due this Agreement to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In additioncontrary, the Company shall not be required entitled to effect postpone and delay, for reasonable periods of time, but in no event more than an aggregate of 60 days during any registration 12-month period (a "Blackout Period"), the filing or effectiveness of any Demand Registration if the Company shall determine that any such filing or the offering of any Registrable Shares would (i) in the good faith judgment of the Board, impede, delay or otherwise interfere with any pending or contemplated material acquisition, corporate reorganization or other similar material transaction involving the Company, (ii) based upon advice from the Company's investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Company or (iii) in the good faith judgment of the Board, require disclosure of material non-public information (other than on Form S-3 or any successor form information relating to secondary offeringsan event described in clauses (i) within six months of or (ii) above) which, if disclosed at such time, would be harmful to the effective date of any other Registration Statement best interests of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Sharesits stockholders; provided, however, that the Company shall not be obligated give written notice to effect more than two registrations on Form S-3 pursuant Parent of its determination to this Section 2(c)postpone or delay the filing of any Demand Registration; and provided, and further provided further, that in the event that the Company proposes to register Common Stock, whether or not for sale for its own account, during a Blackout Period, the Shareholder Group shall not be obligated have the right to effect more than one registration exercise its rights under Section 5.2 of this Agreement with respect to such registration, subject to the limitations contained in this Agreement on Form S-3 pursuant to this Section 2(c) in any six month periodthe exercise of such rights. Upon receipt notice by the Company to Parent of any such requestdetermination, the members of the Shareholder Group shall keep the fact of any such notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or transfer by it of any Common Stock for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and promptly halt any use, publication, dissemination or distribution of the Demand Registration, each prospectus included therein, and any amendment or supplement thereto by it for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, will deliver to the Company any copies then in its possession of the prospectus covering such Registrable Shares.
(c) In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in good faith shall have advised the Company or Parent that, in its opinion, the number of Demand Shares subject to a Demand Request exceeds the number which can be sold in such offering, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included include in such registration the number of Demand Shares that, in the opinion of such of his managing underwriter or its Registrable Shares as such Stockholders may request underwriters, can be sold in such notice offering; provided that if as a result of election. Thereuponany reduction pursuant to this paragraph (c) the aggregate Market Value of the Demand Shares to be so included is less than $300 million, the Company Shareholder Group may withdraw such Demand Request with respect to all Demand Shares covered thereby and such registration shall use its best efforts promptly not count for the purposes of determining the number of Demand Registrations to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to registerShareholder Group is entitled under Section 5.1(a).
(d) If at the time of In connection with any request to register Registrable Shares pursuant to this Section 2underwritten offering, the Company (i) has in good faithmanaging underwriter for such Demand Registration shall be selected by Parent, fixed plans provided that such managing underwriter shall be a nationally recognized investment banking firm and shall be reasonably acceptable to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors. The Company may, would be adversely affected by the requested registration, then the Company may at its option, provided select a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished nationally recognized investment banking firm reasonably acceptable to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right Parent to delay a request to be exercised by the Company not more than once per registration demandedact as co-managing underwriter.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement Nothing in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations Article V shall affect or supersede any of the issuer transfer restrictions set forth in Article IV hereof or any of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary other provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Demand Registrations. (a) At If at any time commencing one year after following the first anniversary of the date the initial Registration Statement of hereof, the Company is declared effective by receives a written request that the Commission Company effect a registration under the Securities Act, a Stockholder or Stockholders Act with respect to the Registrable Securities from Shareholders holding in the aggregate not less than at least a majority of the Registrable Shares, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such requestSecurities, the Company shall promptly give written notice will use its diligent best efforts to effect such registration, which registration may be under any form of such proposed registration to all Stockholders. Each such Stockholder shall have the right, statement eligible for use by giving written notice to the Company within 20 days after for such Stockholder receives his purpose, and as would permit or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, facilitate the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), sale and distribution of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all portion of the Registrable Shares included Securities as are specified in such registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Sharesrequest; provided, however, that the Company shall not be obligated to take any action to effect more than two registrations on Form S-3 such registration pursuant to this Section 2(c), subparagraph 2(a): (i) after the Company has effected two such registrations pursuant to this subparagraph 2(a) and further provided that the such registrations have been declared or ordered effective or (ii) to effect a registration for less than 500,000 shares. The Company shall not be obligated required to effect more than one cause a registration on Form S-3 statement requested pursuant to this Section 2(csubparagraph 2(a) in any six month period. Upon receipt to become effective prior to 120 days following the effective date of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company (i) has in good faith, fixed plans to file, within 90 days of the time of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective, or (ii) is engaged in any other activity which, in the good-faith determination of the Company’s Board of Directors, would be adversely affected by the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised initiated by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to or a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Shareholder. The Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate include in a registration statement filed pursuant to this subparagraph 2(a) shares of Common Stock to be offered and sold for the managing underwriter account of the Company or any other security holders of the Company. 3
(b) Subject to subparagraph 2(a) above and the other terms and conditions contained herein, the Company shall file a registration statement covering the Registrable Securities so requested to be registered as soon as practical, but in any underwritten event within 120 days after receipt of the request or requests of the Shareholder or Shareholders; provided, however, that the Company may postpone for up to 180 days, the filing or the effectiveness (which may include the withdrawal of an effective registration statement) of such a registration statement if the Company's Board of Directors reasonably determines in its good faith judgment that it would be materially disadvantageous to the Company for such a registration statement to be filed and become effective, or be maintained effective; and, provided further, that in such event, the Shareholders will be entitled to withdraw such demand for registration and, if such demand is withdrawn, such registration will not count as one of the demand registrations the Shareholders are entitled to hereunder.
(c) The Company shall have the right to select the investment banker(s) and manager(s) to administer and underwrite the offering, subject to the approval of a majority of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders Shareholders proposing to distribute their securities through such underwriting, which will not be unreasonably withheld. In connection with any registration statement that pertains to Registrable Shares Securities, all Shareholders proposing to distribute their securities through such underwriting shall (together with i) enter into any reasonable underwriting agreement required by the proposed underwriter for the registration of Registrable Securities and (ii) immediately notify the Company) shall enter into an underwriting agreement in customary form with , at any time when a prospectus relating to the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated hereinRegistrable Securities is required to be delivered under the Securities Act, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number occurrence of shares any event relating to be underwritten, then information respecting such Shareholders as a result of which the Initiating Holders shall so advise all other holders prospectus which forms a part of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by statement contains an untrue statement of a material fact or omits to state any material fact necessary to make the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall statement therein not be reduced unless all other securities are first excluded from the underwritingmisleading.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Demand Registrations. (a) At any time commencing one year after the date the initial Registration Statement of the Company is declared effective by the Commission under the Securities ActLock-up Period, a Stockholder any one or Stockholders more Investors holding in the aggregate not less than a majority of the Registrable Shares, may request, in writing, that the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for at least the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock as are reasonably likely to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, a registration must be declared effective and remain effective for at least 120 days (or such shorter period in which all 50% of the Registrable Shares included in such may request 5 66 registration statement have actually been sold thereunder) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement under the Securities Act of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ their Registrable Shares having an aggregate offering price of at least $1,000,000 (based on for sale in the then-current public market price) or, if less, all of manner specified in such Stockholder’s remaining Registrable Sharesrequest; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 register Registrable Shares pursuant to this Section 2(c5.1(a) on more than one occasion in the aggregate, or after the additional take-down referred to in Section 5.3(d), and ; provided further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Shares pursuant to this Section 2, the Company 5.1(a) (i) has within one year after the effectiveness of any Piggyback Registration in good faith, fixed plans connection with which either the requesting Investors declined to file, within 90 days avail themselves of the time opportunity to include their Registrable Shares therein or at least 50% of the request, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant they requested to Section 3 and such Registration Statement is be included in fact filed within such 90-day period and the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effectivewere so included, or (ii) is engaged in any other activity which, in until the good-faith determination expiration of the Company’s Board later of Directors(x) such one-year period and (y) the 90-day period commencing with such request, would if the Company delivers notice to the holders of Registrable Shares as soon as practicable after any request hereunder that the Company in good faith believes that it will offer Piggyback Registration to the Investors pursuant to Section 5.2 within 90 days of such request. All registrations requested pursuant to this Section 5.1(a) shall be referred to herein as "Demand Registrations".
(b) A registration will not count as a Demand Registration for purposes of the first proviso to Section 5.1(a) unless it has become effective and the Investor or Investors requesting such registration are able to register and sell at least 50% of the Registrable Shares they requested to be included in such registration.
(c) The Company and the holders of a majority of the Registrable Shares to be sold pursuant to a Demand Registration shall, upon mutual agreement, designate one or more managing underwriters of nationally recognized standing, if applicable, for such offering. If the managing underwriters advise the Company in writing that in their opinion the number of Registrable Shares and other securities requested to be included (i) creates a substantial risk that the price per share in such registration will be materially and adversely affected by or (ii) exceeds the requested registrationnumber of Registrable Shares and other securities that can be sold in such offering, then the Company may at its option, provided a certificate from the Chief Executive Officer of the Company reciting such circumstances is furnished to the Stockholders, direct that such request be delayed, in the case of clause (i), during the course of the Company’s registration and for a period of six months thereafter, and, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant to a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) shall have the right to designate the managing underwriter in any underwritten offering, subject to the approval of the Company, which approval may not be unreasonably withheld or delayed.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall will include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and registration, prior to the inclusion of such Stockholder’s any securities that are not Registrable Shares in Shares, the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included (including requests pursuant to Section 5.2(a)) that, in the opinion of such registration by underwriters, can be sold, pro rata among the participating Stockholders (or in any such other proportion as agreed upon by respective Investors, on the participating Stockholders). Notwithstanding anything else stated herein, basis of the number of shares of Registrable Shares owned by such Investors so requested to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwritingincluded.
(hd) Only Common Stock The Company may be included in at its option postpone for up to 90 days the filing or the effectiveness of a registration pursuant statement for a Demand Registration if the Company delivers to this Agreementthe Investors that have requested such Demand Registration a certificate executed by an executive officer of the Company to the effect that in the reasonable judgment of the Company such Demand Registration, if effected, could materially interfere with or materially adversely affect any then existing negotiations for financing or any other agreement, arrangement, event, plan or transaction then intended, pending or being negotiated in good faith (an "Adverse Event").
(e) Independent of and without limiting the Company's rights under Section 5.1(d), the Company may at its option also prohibit, for up to 60 days, the use of a registration statement for a Demand Registration upon a certificate executed by an executive officer of the Company to the effect that such prohibition is required to prevent an Adverse Event.
Appears in 1 contract
Demand Registrations. (a) At Subject to Section 7.3, at any time commencing one year after following the date the initial Registration Statement eighteen-month anniversary of the Company is declared Closing (or with respect to a registration that would become effective by following such eighteen-month anniversary, following the Commission seventeen-month anniversary of the Closing or at any time following the occurrence of an event described in Section 6.1(b)), DoCoMo may, on not more than six (6) separate occasions in the aggregate, require (i) prior to the Spin-off, AT&T to file a registration statement under the Securities ActAct in respect of all or a portion of DoCoMo's Registrable Securities or (ii) following the Spin-off, AT&T Wireless to file a Stockholder registration statement under the Securities Act in respect of all or Stockholders holding in the aggregate not less than a majority portion of the DoCoMo's Registrable Shares, may requestSecurities; PROVIDED, in writingeach case, that such request involves Registrable Securities having an aggregate Market Value on the Company effect the registration on Form S-1 or Form S-2 (or any successor form) for date of delivery of such request of at least $500 million, by delivering to the Issuer written notice stating that such right is being exercised, specifying the number of shares of Current Wireless Tracking Stock or AT&T Wireless Common Stock issued or issuable upon conversion of to be included in such registration (the Preferred Stock as are reasonably likely shares subject to result in proceeds, upon registration, of at least $5,000,000, based upon the then-current market price. Upon receipt of any such request, the Company shall promptly give written notice "DEMAND SHARES") and describing the intended method of such proposed registration to all Stockholdersdistribution thereof, which may include an underwritten offering (a "DEMAND REQUEST"). Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of its Registrable Shares as such Stockholder may request in such notice of election. ThereuponUpon receiving a Demand Request, the Company Issuer shall (i) use its best all reasonable efforts to file as promptly to effect the registration, on Form S-1 or Form S-2 (or any successor form), of all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration pursuant to subsection (a) above; provided, however, that subject to Section 5 hereof, as reasonably practicable a registration must statement on such form as it may reasonably deem appropriate (PROVIDED that in no event shall the Issuer be declared effective and remain effective for at least 120 days (or such shorter period in which all of the Registrable Shares included in such obligated to register any securities on a "shelf" registration statement have actually been sold thereunderor otherwise to register securities for offer or sale on a continuous or delayed basis) to constitute a registration hereunder; provided further, that if after any such registration made pursuant to subsection (a) above becomes effective, such registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the actions or omissions to act of the Company, such registration shall not be considered a demand providing for registration hereunder. In addition, the Company shall not be required to effect any registration (other than on Form S-3 or any successor form relating to secondary offerings) within six months of the effective date of any other Registration Statement of the Company in which the Stockholders shall have been entitled to join pursuant to this Agreement and in which there shall have been effectively registered and sold all Registrable Shares as to which registration shall have been so requested. The Company and other holders of Common Stock (or securities exercisable for or convertible into shares of Common Stock) of the Company may include shares of Common Stock in any registration effected pursuant to subsection (a) above if such registration involves an underwriter, unless in the opinion of the managing underwriter the registration of all, or part the sale of such shares would materially and adversely affect the offering contemplated by such registration.
(c) At any time or times after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), any Stockholder or Stockholders may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of such Stockholders’ Registrable Shares having an aggregate offering price of at least $1,000,000 (based on the then-current public market price) or, if less, all of such Stockholder’s remaining Registrable Shares; provided, however, that the Company shall not be obligated to effect more than two registrations on Form S-3 pursuant to this Section 2(c), and further provided that the Company shall not be obligated to effect more than one registration on Form S-3 pursuant to this Section 2(c) in any six month period. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Stockholders. Each such Stockholder shall have the right, by giving written notice to the Company within 20 days after such Stockholder receives his or its notice, to elect to have included in such registration such of his or its Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall use its best efforts promptly to effect the registration on Form S-3, or such successor form, of all Registrable Shares which the Company has been requested to register.
(d) If at the time of any request to register Registrable Demand Shares pursuant to this Section 2, the Company intended method of distribution (ia "DEMAND REGISTRATION") has in good faith, fixed plans to file, within 90 days and (ii) after the filing of an initial version of the time of the requestregistration statement, a Registration Statement as to which the Stockholders may include Registrable Shares pursuant to Section 3 and such Registration Statement is in fact filed within such 90-day period and the Company is actively employing in good faith use all reasonable efforts to cause such registration statement to become effectivebe declared effective under the Securities Act as promptly as practicable after the date of filing of such registration statement. DoCoMo (including any transferee to which DoCoMo shall have transferred registration rights as permitted hereunder) may not exercise more than one Demand Request in any 7 1/2 month period. In the event that a Demand Request is delivered to AT&T prior to the Spin-off, but the Demand Shares are not registered by the time of consummation of the Spin-off, such Demand Request shall be deemed withdrawn and shall not count for the purposes of determining the number of Demand Registrations to which DoCoMo is entitled hereunder.
(b) Anything in this Agreement to the contrary notwithstanding, the Issuer shall be entitled to postpone and delay, for reasonable periods of time, but in no event more than an aggregate of 90 days during any 12-month period (a "BLACKOUT PERIOD"), the filing or effectiveness of any Demand Registration if the Issuer shall determine that any such filing or the offering of any Registrable Securities would (i) in the good faith judgment of the Board, impede, delay or otherwise interfere with any pending or contemplated material acquisition, corporate reorganization or other similar material transaction involving the Issuer, including without limitation the Spin-off and the proposed Exchange Offer, (ii) based upon advice from the Issuer's investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by the Issuer or the Spin-off or the proposed Exchange Offer or (iii) in the good faith judgment of the Board, require disclosure of material non-public information (other than information relating to an event described in clauses (i) or (ii) is engaged in any other activity above) which, in the good-faith determination of the Company’s Board of Directorsif disclosed at such time, would be adversely affected by harmful to the requested registration, then the Company may at its option, provided a certificate from the Chief Executive Officer best interests of the Company reciting such circumstances is furnished Issuer and its stockholders; PROVIDED, HOWEVER, that the Issuer shall give written notice to DoCoMo of its determination to postpone or delay the Stockholdersfiling of any Demand Registration; PROVIDED, direct FURTHER, that such request be delayed, except in the case of clause (i), during a registration related to the course of Spin-off or the Company’s registration and for a period of six months thereafter, andExchange Offer, in the case of clause (ii), for a period not in excess of 90 days from the date the Board determines a delay is needed, such right to delay a request to be exercised by the Company not more than once per registration demanded.
(e) In the event that Registrable Shares are sold pursuant the Issuer proposes to register AT&T Wireless Stock, whether or not for sale for its own account, during a Registration Statement in a firm commitment underwritten offering pursuant to this Section 2Blackout Period, the Company agrees to enter into an underwriting agreement containing customary representations and warranties with respect to the business and operations of the issuer of the securities being registered and customary covenants and agreements to be performed by such issuer, including without limitation customary provisions with respect to indemnification by the Company of the underwriters of such offering.
(f) In the case of any registration effected at the request of the Stockholders pursuant to this Section 2, the Initiating Holders (as hereinafter defined) DoCoMo shall have the right to designate exercise its rights under Section 7.2 of this Agreement with respect to such registration, subject to the limitations contained in this Agreement on the exercise of such rights; and PROVIDED FURTHER that AT&T or AT&T Wireless, as the case may be, shall file such registration statement or post-effective amendment and otherwise continue with such registration as soon as practicable thereafter. Upon notice by the Issuer to DoCoMo of any such determination, DoCoMo shall keep the fact of any such notice strictly confidential, and during any Blackout Period, promptly halt any offer, sale, trading or Transfer by it of any AT&T Wireless Stock for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Issuer) and promptly halt any use, publication, dissemination or distribution of the Demand Registration, each prospectus included therein, and any amendment or supplement thereto by it for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Issuer) and, if so directed by the Issuer, will deliver to the Issuer any copies then in its possession of the prospectus covering such Registrable Securities.
(c) In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in good faith shall have advised the Issuer or DoCoMo that, in its opinion, the number of Demand Shares subject to a Demand Request exceeds the number that can be sold in such offering, the Issuer shall include in such registration the number of Demand Shares that, in the opinion of such managing underwriter or underwriters, can be sold in such offering; PROVIDED that if as a result of any reduction pursuant to this paragraph (c) the aggregate Market Value of the Demand Shares to be so included is less than $500 million, DoCoMo may withdraw such Demand Request with respect to all Demand Shares covered thereby and such registration shall not count for the purposes of determining the number of Demand Registrations to which DoCoMo is entitled under Section 7.1(a); PROVIDED, FURTHER, that if pursuant to the Demand Request DoCoMo has given the Issuer the right to select the managing underwriter (reasonably acceptable to DoCoMo) and the managing underwriter so selected by the Issuer makes the determination that results in the reduction pursuant to this paragraph (c) such that the aggregate Market Value of the Demand Shares to be so included is less than $500 million, then DoCoMo may elect to proceed with the registration, and such registration shall not count for the purposes of determining the number of Demand Registrations to which DoCoMo is entitled under Section 7.1(a).
(d) In connection with any underwritten offering, subject the managing underwriter or underwriters for such Demand Registration shall be selected by DoCoMo; PROVIDED that such managing underwriter shall be a nationally recognized investment banking firm and shall be reasonably acceptable to the approval Issuer and provided, further that with respect to any registration effected in connection with Section 4.3(e) hereof, AT&T or AT&T Wireless, as the case may be, will be entitled to select the managing underwriter or underwriters. In addition to the foregoing, the Issuer may, at its option, select a nationally recognized investment banking firm reasonably acceptable to DoCoMo to act as a co-managing underwriter. The Issuer shall have the right to approve the selection of the Companycounsel to any managing underwriter hereunder, which approval may will not be unreasonably withheld or delayedwithheld.
(g) If the Stockholders initiating the registration under this Section 2 (the “Initiating Holders”) intend to distribute the Registrable Shares covered by their request by means of an underwriting, they shall so advise the Company as part of their request to the Company, and the Company shall include such information in the written notice to the other Stockholders. In such event, the right of any Stockholder to include his or its Registrable Shares in such registration shall be conditioned upon such Stockholder’s participation in such underwriting and the inclusion of such Stockholder’s Registrable Shares in the underwriting to the extent provided herein. All Stockholders proposing to distribute their Registrable Shares through such underwriting (together with the Company) shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding anything else stated herein, if the underwriter advises the Initiating Holders in writing that market factors require a limitation of the number of shares to be underwritten, then the Initiating Holders shall so advise all other holders of Registrable Shares which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Shares that may be included in the underwriting shall be allocated pro rata among all participating Stockholders based upon their total ownership of the aggregate number of Registrable Shares requested to be included in such registration by the participating Stockholders (or in any such other proportion as agreed upon by the participating Stockholders). Notwithstanding anything else stated herein, the number of shares of Registrable Shares to be included in such underwriting shall not be reduced unless all other securities are first excluded from the underwriting.
(h) Only Common Stock may be included in a registration pursuant to this Agreement.
Appears in 1 contract
Sources: Investor Agreement (At&t Corp)