Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall: (a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and (b) use all commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4: (i) if Form S-3 is not available for such offering by the Holders; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000; (iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered); (iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4; (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; (vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or (vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective. (c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2). (d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 5 contracts
Sources: Investors’ Rights Agreement (SI-BONE, Inc.), Investors’ Rights Agreement (SI-BONE, Inc.), Investors’ Rights Agreement
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:
2.12: (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
1,000,000; (iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 Registration Statement for a period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.12; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) -month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
period; (iv) if the Company has, within the twelve (12) -month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;
2.12 and other similar provisions granting rights to registration on Form S-3; (v) if in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance;
; or (vi) if the Company, within thirty (30) days of receipt Holders hold in the aggregate less than 1% of the request outstanding shares of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectivecapital stock.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the Holders. All expenses incurred in connection with a registration requested pursuant to Section 2.12, including (without limitation) all registration, filing, qualification, printer’s and accounting fees and the reasonable fees and disbursements of counsel for the selling Holder or Holders and counsel for the Company (with the payment of fees and disbursements of counsel for the Company dependent upon the Company’s including securities in such registration), shall be borne pro rata by the Holder or Holders participating in the Form S-3 Initiating Registration; provided, however, that the Company shall bear and pay all such expenses, including (without limitation) all registration, filing and qualification fees, printer’s and accounting fees and the fees and disbursements of one counsel for the selling Holders, but excluding underwriting discounts and commission relative to the Registrable Securities, with respect to the first three such registration pursuant to this Section 2.12. Registrations effected pursuant to this Section 2.12 shall not be counted as demands for registration effected pursuant to Section 2.2.
Appears in 4 contracts
Sources: Investors’ Rights Agreement (Digirad Corp), Investors’ Rights Agreement (Digirad Corp), Investors’ Rights Agreement (Digirad Corp)
Form S-3 Registration. After Any Holder or group of Holders holding at least ten percent (10%) of the Initial OfferingRegistrable Securities (an “Initiating Form S-3 Holder”) may request at any time following the date hereof that the Company file a Registration Statement under the Securities Act on Form S-3 (or similar or successor form) covering the sale or other distribution of all or any portion of the Registrable Securities held by such Initiating Form S-3 Holder pursuant to Rule 415 under the Securities Act (“Form S-3 Demand”) if the Company is a registrant qualified to use Form S-3 (or any similar or successor form) to register such Registrable Securities. If such condition is met, the Company shall use its commercially reasonable best efforts to qualify for registration register under the Securities Act on Form S-3 (or any comparable similar or successor form or formsform) at the earliest practicable date, for sale in accordance with the method of disposition specified in the Form S-3 Demand, the number of Registrable Securities specified in such Form S-3 Demand. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) connection with a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersDemand, the Company shall:
(a) promptly give written notice of agrees to include in the proposed registration, and prospectus included in any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicableRegistration Statement on Form S-3, such registration material describing the Company and all such qualifications and compliances as may be so requested and as would permit or intended to facilitate the sale and distribution of all securities being so registered as is reasonably requested for inclusion therein by the Initiating Form S-3 Holders, whether or such portion not the rules applicable to preparation of Form S-3 require the inclusion of such Holders’ Registrable Securities information. Form S-3 Demands will not be deemed to be Demand Requests as are specified described in such requestSection 2.1 hereof and Holders shall have the right to request an unlimited number of Form S-3 Demands. Notwithstanding the foregoing, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not file more than ninety four (904) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration Registration Statements on Form S-3 pursuant to this Section 1.4;
(v) 2.3 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;
given twelve (vi12) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectivemonth period.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 4 contracts
Sources: Registration Rights Agreement (Greenlight Capital LLC), Registration Rights Agreement (BioFuel Energy Corp.), Registration Rights Agreement (BioFuel Energy Corp.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holders of at least 5,000,000 the Registrable Securities (for purposes of this Section 1.42.3, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 covering the registration of Registrable Securities with an anticipated aggregate offering price of at least [***] and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all its commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days [***] after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.42.3:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000[***];
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 2.3 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days [***] after receipt of the request of the S-3 Initiating Holders, ; provided that such right shall be exercised by the Company not more than once [***] in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)[***] period;
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(viv) if the Company, within thirty (30) days [***] of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days [***] of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective; or
(viivi) during the period starting with the date thirty (30) days [***] prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days [***] following the effective date of a Company-Company initiated registration subject to Section 1.3 above2.2 of this Agreement, provided that the Company is actively employing in good faith all its commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 2.3 and the Company shall include such information in the written notice referred to in Section 1.4(a2.3(a). The provisions of Section 1.2(b2.1(b) of this Agreement shall be applicable to such request (with the substitution of Section 1.4 2.3 for references to Section 1.22.1).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.3 shall not be counted as requests for registration effected pursuant to Section 2.1 of this Agreement.
Appears in 4 contracts
Sources: Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, use reasonable best efforts to file a Form S-3 registration statement concerning the Registrable Securities and other securities so requested to be registered and to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than One Million Dollars ($3,000,0001,000,000);
(iii) if within thirty (30) days after receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement for such securities;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided however, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that unless the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration already subject to Section 1.3 above, provided that the Company is actively employing service in good faith all commercially reasonable efforts to cause such registration statement to become effectivejurisdiction.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made Registrations effected pursuant to this Section 1.4 and the Company 2.4 shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall not be applicable to such request (with the substitution of Section 1.4 counted as demands for references registration or registrations effected pursuant to Section 1.2)2.2.
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 4 contracts
Sources: Investor Rights Agreement (LendingClub Corp), Investor Rights Agreement (LendingClub Corp), Investor Rights Agreement (LendingClub Corp)
Form S-3 Registration. After Notwithstanding anything in Section 1.1 or Section 1.2 of this Exhibit A to the Initial Offeringcontrary, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In in case the Company shall receive from the Initiating Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) that are Triarc Affiliates or Sachs Affiliates a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder Triarc Affiliates or HoldersSachs Affiliates, and the Company is then eligible to use Form S-3 for the resale of Registrable Securities, the Company shallwill, in each case:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts subject to effectany Deferral Periods, as soon as practicable, promptly effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such HoldersTriarc Affiliates’ or Sachs Affiliates’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.41.3:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;2.5 million; or
(iii) if the Company has effected a total of two (2) registrations pursuant to Section 1.1 and Section 1.3 of this Exhibit A initiated by the Initiating Holders that are Triarc Affiliates and two (2) registrations pursuant to Section 1.1 and Section 1.3 of this Exhibit A initiated by the Initiating Holders that are Sachs Affiliates; provided, that any such registration shall furnish be deemed to all Holders requesting a have been “effected” if the registration statement pursuant to this Section 1.4 a certificate signed by relating thereto (A) has become or been declared or ordered effective under the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act, a registration on and any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt Securities of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90Holder(s) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing included in good faith all commercially reasonable efforts to cause such registration statement to become effectivehave actually been sold thereunder and (B) has remained effective for the applicable Effectiveness Period; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable promptly after receipt of the request or requests of the S-3 Initiating Holders.. Registrations effected pursuant to this Section 1.3 shall not be counted as requests for registration effected pursuant to Section 1.1 or Section 1.2 respectively of this Exhibit A.
Appears in 3 contracts
Sources: Registration Rights Agreement (Deerfield Capital Corp.), Registration Rights Agreement (Triarc Companies Inc), Registration Rights Agreement (Deerfield Triarc Capital Corp)
Form S-3 Registration. After the Initial OfferingSubject to Section 10 below, after the Company shall use its commercially reasonable efforts is eligible to qualify for registration register Registrable Securities on Form S-3 or any comparable or successor form or forms. In case S-3, each Holder shall have the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that right to demand the Company effect a registration with respect to all or a part of its Registrable Securities on Form S-3 and any related qualification or compliance with respect to all or a part compliance. Upon receipt of the Registrable Securities owned by such Holder or Holderswritten request, the Company shall:
, as soon as practicable, (ai) promptly give written notice of the proposed registrationregistration to all other Holders, and any related qualification or and compliance, to all other Holders; and
and (bii) use all commercially reasonable best efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Holder’s Registrable Securities as are specified in such request, request together with all or such portion of the Registrable Securities of requested to be included by any other Holders joining who notify the Company in such request as are specified in a written request given writing within fifteen (15) 10 business days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.43:
(iA) if Form S-3 is not available for such offering by the HoldersHolder;
(iiB) if the HoldersHolder, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,00022 million;
(iiiC) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the Holder a certificate signed by the Company’s President or Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement no more than once during any twelve (12) month period for a period of not more than ninety one hundred eighty (90180) days after following receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction Holder under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)this Section 3;
(ivD) if the Company has, within the twelve (12) 12 month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.43; provided, however, if all of the Holders’ Registrable Securities requested to be included in the prior registration were not included in the prior registration as a result of cutback provisions imposed by a managing underwriter pursuant to Section 3(c) below, then the Holders shall have the right to demand one (1) additional registration on Form S-3 during such 12-month period;
(vE) if the Company has, within the six month period preceding the date of such request, effected a Piggyback Registration in which all Holders were given registration rights pursuant to Section 2(a) and at least 50% of the number of Registrable Securities requested by such Holders to be included in the Piggyback Registration were included;
(F) if the Company has, within the six month period preceding the date of such request, effected a Demand Registration; or
(G) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 3 contracts
Sources: Investor Rights Agreement (Vmware, Inc.), Investor Rights Agreement (Intel Corp), Investor Rights Agreement (Vmware, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than one million dollars ($3,000,0001,000,000);
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once twice in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.. Registrations effected pursuant to
Appears in 3 contracts
Sources: Registration Rights Agreement (C3.ai, Inc.), Registration Rights Agreement (C3.ai, Inc.), Registration Rights Agreement (C3.ai, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
1.3 if: (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
; (iii) if the Company has, within the twelve (12) month period preceding the date of such request, effected two registrations on Form S-3 for the Holders pursuant to this Section 1.3 that have been declared or ordered effective; or (iv) the Company shall furnish to all such Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s President or Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board board of Directors directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at filed and it is therefore essential to defer the filing of such timeregistration statement, in which event the Company shall have the right to defer such filing for a period of not more than ninety one hundred and twenty (90120) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.3; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveperiod.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 3 contracts
Sources: Registration Rights Agreement (Accentia Biopharmaceuticals Inc), Registration Rights Agreement (Accentia Biopharmaceuticals Inc), Registration Rights Agreement (Accentia Biopharmaceuticals Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than one million dollars ($3,000,0001,000,000);
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, has already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.4;2.4; or
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Nimble Storage Inc), Investor Rights Agreement (Nimble Storage Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.41.5, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.41.5:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0001,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 1.5, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 pursuant to this Section 1.4;1.5; 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 1.5 and the Company shall include such information in the written notice referred to in Section 1.4(a1.5(a). The provisions of Section 1.2(b1.3(b) shall be applicable to such request (with the substitution of Section 1.4 1.5 for references to Section 1.21.3).
(d) Subject to the foregoing, the Company shall use its best efforts to file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.5 shall not be counted as requests for registration effected pursuant to Section 1.3.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Inogen Inc), License Agreement (Inogen Inc), Investors’ Rights Agreement (Inogen Inc)
Form S-3 Registration. After In the Initial Offering, event that the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive receives a written request from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
: (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
1,000,000; (iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) -month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.4;
; or (viv) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.4 shall not be counted as demands for registration or registrations effected pursuant to Sections 1.2 or 1.3, respectively.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Aratana Therapeutics, Inc.), Investors’ Rights Agreement (Aratana Therapeutics, Inc.), Investors’ Rights Agreement (Aratana Therapeutics, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available unavailable for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion include their securities in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than one million dollars ($3,000,0001,000,000);
(iii) if within 30 days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering of its securities within 90 days, other than pursuant to a Special Registration Statement;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board or the Chief Executive Officer of Directors the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once twice in any twelve (12) 12 month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivv) if the Company has, within the twelve (12) 12 month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;2.4; or
(vvi) in any particular jurisdiction in which the Company would be required to qualify to do business or business, to execute a general consent to service of process or to subject itself to taxation in effecting such registration, qualification or compliance;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 3 contracts
Sources: Investor Rights Agreement (Inozyme Pharma, Inc.), Investor Rights Agreement (Inozyme Pharma, Inc.), Investor Rights Agreement (Inozyme Pharma, Inc.)
Form S-3 Registration. After (a) Notwithstanding anything in Section 2.1 or Section 2.2 to the Initial Offeringcontrary, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In in case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4any ▇▇▇▇▇ Registration Party, the “S-3 Initiating Holders”) any SL Registration Party or any Temasek Registration Party a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersRegistration Party (which shall not constitute a Demand), and the Company is then eligible to use Form S-3 for the resale of Registrable Securities, the Company shall:
(a1) as promptly as reasonably practicable, give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b2) as promptly as reasonably practicable, file and use all commercially reasonable best efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registration Party’s Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Holder joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:2.3 (or, with respect to a request under Section 2.4, any Shelf Take-Down pursuant to Section 2.4):
(iA) if Form S-3 is not available for such offering by the HoldersRegistration Parties;
(iiB) solely with respect to filing and causing the effectiveness of a registration on Form S-3 or effecting a Marketed Underwritten Shelf Take-Down, if the HoldersRegistration Parties, together with the holders Holders of any other securities of the Company Registrable Securities entitled to inclusion in such registrationregistration (or Marketed Underwritten Shelf Take-Down, as applicable), propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,00050 million;
(iiiC) if (i) the board of directors of the Company shall furnish determines in good faith after consultation with outside counsel that such Form S-3 registration would cause the Company to all Holders requesting a disclose material non-public information, which disclosure (x) would be required to be made in any registration statement so that such registration statement would not be materially misleading, (y) would not be required to be made at such time but for the filing or effectiveness of such registration statement and (z) would be materially detrimental to the Company or would materially interfere with any material financing, acquisition, corporate reorganization or merger or other similar transaction involving the Company or any of its Subsidiaries, and that, as a result of such potential disclosure or interference, it is in the best interests of the Company to defer the filing or effectiveness of such registration statement (or, with respect to a Shelf Take-Down under Section 2.4, the sale of securities of the Company pursuant to this Section 1.4 such Form S-3 registration statement) at such time, and (ii) the Company furnishes to the Registration Parties a certificate signed by the Company’s Chief Executive Officer or Chairman chief executive officer of the Board of Directors stating Company to that in the good faith judgment of the Board of Directors of the Companyeffect, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event then the Company shall have the right to defer such filing of the Form S-3 registration statement (or Shelf Take-Down) for a period of not more than ninety (90) 120 days after receipt of the request of the S-3 Initiating HoldersRegistration Party under this Section 2.3 (or Section 2.4, provided as applicable); provided, that such right shall be exercised by the Company shall not use this right, together with any other deferral or suspension of the Company’s obligations under Section 2.1 or Section 2.3, more than once in any twelve (12) -month period and provided further that the period. The Company shall not register any securities for as promptly as reasonably practicable notify the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 Selling Holders of the Actexpiration of any period during which it exercised its rights under this Section 2.3(a)(2)(C). The Company agrees that, a registration on any form that does not include substantially in the same information event it exercises its rights under this Section 2.3(a)(2)(C), it shall, as would be required promptly as reasonably practicable following the expiration of the applicable deferral period, file or update and use its reasonable best efforts to be included in a cause the effectiveness of, as applicable, the applicable deferred registration statement covering the sale of the Registrable Securities, (or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registeredShelf Take-Down);
(ivD) solely with respect to filing and causing the effectiveness of a registration on Form S-3, subject to Section 2.3(d), if the Company has, within the twelve (12) month 120-day period preceding the date of such request, already effected one (1) registration on Form S-3 for a Registration Party pursuant to this Section 1.4;2.3 (but, for the avoidance of doubt, regardless of whether any Shelf Take-Downs have been effected during such period); provided, that any such registration shall be deemed to have been “effected” if the registration statement relating thereto (x) has become or been declared or ordered effective under the Securities Act, and any of the Registrable Securities of the Registration Party included in such registration have actually been sold thereunder, and (y) has remained effective for a period of at least 180 days in the case of a registration on Form S-3 for a ▇▇▇▇▇ Registration Party, an SL Registration Party or a Temasek Registration Party; or
(vE) 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;.
(vib) if Subject to the Companyforegoing, within thirty (30) days of the Company shall file a registration statement covering the Registrable Securities so requested to be registered, as promptly as reasonably practicable, after receipt of the request or requests of the Registration Party and the other Holders (the “Form S-3 Registration Statement”) and any such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing Holder may request inclusion of a registration statement plan of distribution in accordance with Section 2.7(i) and/or that such Form S-3 Registration Statement constitute a shelf offering on a delayed or continuous basis in accordance with Rule 415 under the SEC within ninety Securities Act (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145“Form S-3 Shelf Registration Statement”), provided that in which case the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate provisions of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective2.4 shall also be applicable.
(c) If the S-3 Initiating Holders ▇▇▇▇▇ Registration Parties, the SL Registration Parties or the Temasek Registration Parties intend to distribute the Registrable Securities covered by their request under this Section 2.3 by means of an underwritinga Marketed Underwritten Shelf Take-Down pursuant to Section 2.4(b), they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and 2.3 and, subject to the limitations set forth in Section 2.3(a), the Company shall include such information in the written notice referred to in Section 1.4(a2.3(a). The provisions In such event, the right of Section 1.2(bany Holder to include Registrable Securities in such registration (or Underwritten Shelf Take-Down, as applicable) shall be applicable conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise agreed by the Holders with a majority of the Registrable Securities participating in the registration and by the requesting Registration Party) to the extent provided in this Agreement. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 2.7) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 2.3 or Section 2.4, if the lead underwriter or managing underwriter advises the Company in writing (with a copy to each Selling Holder) that, in such firm’s good faith view, the number of Registrable Securities and Other Securities requested to be included in such offering exceeds the number which can be sold in such offering without being likely to have a significant adverse effect upon the price, timing or distribution of the offering and sale of the Registrable Securities and Other Securities then contemplated, the Company shall include in such offering:
(1) first, Registrable Securities owned by the ▇▇▇▇▇ Registration Parties, the SL Registration Parties and the Temasek Registration Parties that are requested to be included in such offering pursuant to Section 2.3 and Section 2.4 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such Registrable Securities owned by the ▇▇▇▇▇ Registration Parties, the SL Registration Parties and the Temasek Registration Parties seeking such inclusion in such offering; provided, that until and including the Cutback Trigger, such Registrable Securities that are allocable to the Registration Parties in the aggregate pursuant to the preceding portion of this clause (1) shall be allocated among the Registration Parties as follows: (x) first, (unless any of the ▇▇▇▇▇ Registration Parties, SL Registration Parties or Temasek Registration Parties are Declining Parties), the ▇▇▇▇▇ Percentage to the ▇▇▇▇▇ Registration Parties seeking inclusion in such offering, the SL Percentage to the SL Registration Parties seeking inclusion in such offering and the Temasek Percentage to the Temasek Registration Parties seeking or requesting inclusion in such offering, until either the ▇▇▇▇▇ Registration Parties, the SL Registration Parties or the Temasek Registration Parties are Excluded Parties with respect to such request offering (with y) thereafter (or first, if any of the substitution ▇▇▇▇▇ Registration Parties, SL Registration Parties or Temasek Registration Parties are Declining Parties), to the Remaining Registration Party Groups, based on a percentage equal to each such Remaining Registration Party Group’s Percentage divided by the sum of Section 1.4 for references the Percentages of both Remaining Registration Party Groups until either of the Remaining Registration Party Groups have been fully allocated all its Registrable Securities sought or requested to be included in such offering and (z) thereafter, 100% to the sole Remaining Registration Party Groups seeking or requesting inclusion in such offering;
(2) second, Registrable Securities owned by the Other Holders that are requested to be included in such offering pursuant to Section 1.2)2.3 and Section 2.4 and that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Registrable Securities owned by the Other Holders seeking inclusion in such offering; and
(3) third, the Other Securities owned by any holder thereof with a contractual right to include such Other Securities in such offering that can be sold without having the significant adverse effect referred to above, pro rata on the basis of the relative number of such fully vested Other Securities owned by the Persons seeking inclusion in such offering.
(d) Subject Notwithstanding the foregoing, if the Company shall receive from any Holders of Registrable Securities then outstanding a written request or requests under Section 2.3 that the Company effect a registration statement on Form S-3 that includes only those items and that information that is required to be included in parts I and II of such Form, and does not include any additional or extraneous items of information (e.g., a lengthy description of the Company or the Company’s business) (an “Ordinary S-3 Registration Statement”), then Section 2.3(a)(2)(D) shall not apply to such Ordinary S-3 Registration Statement request.
(e) Upon the written request of any ▇▇▇▇▇ Registration Party, SL Registration Party or Temasek Registration Party (which shall not constitute a Demand), prior to the foregoingexpiration of effectiveness of any existing Form S-3 Shelf Registration Statement in accordance with Rule 415, the Company shall file and seek the effectiveness of a registration statement covering new Form S-3 Shelf Registration Statement in order to permit the continued offering of the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the included under such existing Form S-3 Initiating HoldersShelf Registration Statement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Virtu Financial, Inc.), Registration Rights Agreement (Virtu Financial, Inc.), Registration Rights Agreement (Virtu Financial, Inc.)
Form S-3 Registration. After (a) Subject to the Initial Offeringconditions of this Section 1.11, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case if the Company shall receive from the Holders of at least 5,000,000 a majority of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersHolder(s), then the Company shall:
shall (a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
Holders and (b) use all commercially reasonable its best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Holder joining in such request as are specified in a written request given within fifteen (15) calendar days of the date the Company’s notice referred to in clause (a) of this sentence is given.
(b) If the Holders requesting registration pursuant to this Section 1.11 intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 1.11 and the Company shall include such information in the written notice referred to in clause (a) of Section 1.11(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Holders requesting registration. In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 1.11, if the underwriter advises the Holders requesting registration in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Holders requesting registration shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Holders requesting registration, in proportion (as nearly as practicable) to the amount of Registrable Securities requested by each such Holder to be included in such underwriting; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other Securities (including those to be sold for the Company’s account) are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to the Holder(s) requesting a registration pursuant to this Section 1.11, a certificate signed by the Company’s Chief Executive Officer or President stating that in the good faith judgment of the Company’s Board of Directors, such registration would be seriously detrimental to the Company and its stockholders and that it is, therefore, essential to defer taking action with respect to such registration, the Company shall have the right to defer taking action with respect to such filing for a period of not more than one hundred twenty (120) calendar days after receipt the date the request of such written notice from the Company, Holder(s) requesting a registration pursuant to this Section 1.11 is given; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period.
(d) In addition, the Company shall not be obligated to effect effect, or to take any such registrationaction to effect, qualification or compliance, any registration pursuant to this Section 1.41.11:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ underwriting discounts or and commissions) of less than $3,000,00010,000,000;
(iii) if during the Company shall furnish period starting with the date sixty (60) calendar days prior to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman good faith estimate of the Board date of Directors stating that in filing of, and ending on a date one hundred eighty (180) calendar days after the good faith judgment effective date of, any registration statement pertaining to an underwritten public offering of the Board of Directors of securities for the Company, it would be seriously detrimental to ’s account; provided that the Company and is actively employing its stockholders for best efforts to cause such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);effective; or
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that compliance unless the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration already subject to Section 1.3 above, provided that service in such jurisdiction and except as may be required by the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveSecurities Act.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Mavenir Systems Inc), Investors’ Rights Agreement (Mavenir Systems Inc), Investors’ Rights Agreement (Mavenir Systems Inc)
Form S-3 Registration. After Any Holder (an “Initiating Form S-3 Holder”) may request, at any time, that the Initial OfferingCompany file a Registration Statement under the Securities Act on Form S-3 (or similar or successor form) covering the sale or other distribution of all or any portion of the Registrable Securities held by such Initiating Form S-3 Holder pursuant to Rule 415 under the Securities Act (“Form S-3 Demand”) if (i) the reasonably anticipated aggregate gross proceeds would equal or exceed $5,000,000, (ii) the Company is a registrant qualified to use Form S-3 (or any similar or successor form) to register such Registrable Securities and (iii) the plan of distribution of the Registrable Securities is other than pursuant to an underwritten public offering. If such conditions are met, the Company shall use its commercially reasonable best efforts to qualify for registration register under the Securities Act on Form S-3 (or any comparable similar or successor form or formsform) at the earliest practicable date, for sale in accordance with the method of disposition specified in the Form S-3 Demand, the number of Registrable Securities specified in such Form S-3 Demand. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) connection with a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersDemand, the Company shall:
(a) promptly give written notice of agrees to include in the proposed registration, and prospectus included in any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicableRegistration Statement on Form S-3, such registration material describing the Company and all such qualifications and compliances as may be so requested and as would permit or intended to facilitate the sale and distribution of all securities being so registered as is reasonably requested for inclusion therein by the Initiating Form S-3 Holders, whether or such portion not the rules applicable to preparation of Form S-3 require the inclusion of such Holders’ Registrable Securities as are specified in such requestinformation. Notwithstanding the foregoing, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all the Initiating Form S-3 Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman and Chief Financial Officer of the Board of Directors Company stating that in the good faith judgment opinion of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timea Valid Business Reason exists, in which event the Company shall have the right to delay or defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Form S-3 Initiating HoldersDemand; provided, provided however, that such right to delay or defer a Form S-3 Demand shall be exercised by the Company not more than once in any twelve (12) month period period, the Company shall only have the right to delay a Form S-3 Demand so long as such Valid Business Reason exists, and provided further during such time the Company may not file a Registration Statement for securities to be issued and sold for its own account or for that of any other Holders. Form S-3 Demands will not be deemed to be Demand Requests as described in Section 1.2 hereof and Holders shall have the right to request an unlimited number of Form S-3 Demands. Notwithstanding the foregoing, the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other be obligated to file more than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration Registration Statement on Form S-3 pursuant to this Section 1.4;
(v) 1.4 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;
given six (vi6) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectivemonth period.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Radical Holdings Lp), Securities Purchase Agreement (Immediatek Inc), Investor's Rights Agreement (Immediatek Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 ten percent (10%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, subject, however, to the limitations set forth in Section 1.13(b) if the offering involves an underwriting (which provisions of Section 1.13(b) shall apply to offerings under this Section 1.10); provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
1.10: (i1) if Form S-3 is not available for such offering by the Holders;
; (ii2) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
; (iii3) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company (the “Board”) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.10; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) month period period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
; (iv4) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;
1.10; or (v5) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that unless the Company is actively employing in good faith all commercially reasonable efforts already qualified to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of do business and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that service of process in such jurisdiction and except as may be required under the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveAct.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
(d) Any registrations effected pursuant to this Section 1.10 shall not be counted as a registration effected pursuant to Section 1.13.
(e) A registration shall not constitute a registration on Form S-3 until it has become effective and remains continuously effective for the period of the distribution contemplated thereby (determined as provided in Section 1.3 hereof); provided, however, that a registration shall not constitute a registration on Form S-3 if (x) after such registration has become effective, such registration of 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 SEC or other governmental agency or court for any reason not attributable to the Holders initiating the registration hereunder and such interference is not thereafter eliminated or (y) the conditions specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure by the Holders initiating the registrations hereunder.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (GOOD TECHNOLOGY Corp), Investors’ Rights Agreement (GOOD TECHNOLOGY Corp), Investors’ Rights Agreement (GOOD TECHNOLOGY Corp)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from any Holder of the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersHolder, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen twenty (1520) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000US$1,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company circumstances described in Sections 1.2(c)(iv) and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered1.2(c)(vi);; and
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate earlier of (A) the five (5) year anniversary of the date of the filing of and ending on a date ninety this Agreement or (90B) days following six (6) months after the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveInitial Public Offering.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders; provided, however, the provisions of Section 1.2(c)(vi) shall apply to any registration pursuant to this Section 1.4. Registrations effected pursuant to this Section 1.4 shall not be counted as requests for registration effected pursuant to Section 1.2 or Section 1.3.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (CG Oncology, Inc.), Investors’ Rights Agreement (CG Oncology, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 fifteen percent (15%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0002,500,000;
(iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.days
Appears in 2 contracts
Sources: Investors' Rights Agreement (Lets Talk Cellular & Wireless Inc), Common Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc)
Form S-3 Registration. After Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2, if, at any time during the period commencing as of the end of the Initial OfferingShare Holding Period and ending on the ten-year anniversary of the Closing Date, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive receives from the Holders of at least 5,000,000 Registrable Securities Majority Stockholder, or from Silver Lake, TPG or August after the Majority Stockholder has distributed Subject Shares pursuant to Section 3.3 (for purposes of this Section 1.4, the each an “S-3 Initiating HoldersParty”) ), a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder S-3 Initiating Party or HoldersS-3 Initiating Parties, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holdersthe Managing Registration Rights Holders (each of which Managing Registration Rights Holder will notify each of the Permitted Transferees of such Managing Registration Rights Holder that holds Registrable Securities); and
(b) use all commercially reasonable efforts to effectas expeditiously as reasonably practical, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such HoldersS-3 Initiating Party’s or S-3 Initiating Parties’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Registration Rights Holder or Registration Rights Holders joining in such request as are specified in a written request given delivered to the Company by the Managing Registration Rights Holders within fifteen fourteen (1514) days after receipt of such written notice from the Company, provided, however, ; provided that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.44.3:
(i) if Form S-3 (or any successor form) is not available for such offering by the Registration Rights Holders;; or
(ii) if (x) the requested registration pursuant to this Section 4.3 involves an underwritten offering, and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;20,000,000; or
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by Registration Rights Holders, together with the Company’s Chief Executive Officer or Chairman holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or
(iv) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of Directors stating that such information would not be in the good faith judgment best interests of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timestockholders, in which event case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 120th day after receipt by the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the written request of from the S-3 Initiating HoldersMajority Stockholder, provided TPG, Silver Lake or August, as the case may be, to register Registrable Securities under this Section 4.3(a); provided, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);period; or
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration on Form S-3 statements for any of the Registration Rights Holders pursuant to this Section 1.4;4.3, Section 4.1 or Section 4.2; or
(vvi) 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;compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; or
(vivii) if with respect thereto, the Companymanaging underwriter, within thirty the SEC, the Securities Act, or the form on which the registration statement is to be filed, would require the conduct of a Special Audit, in which case the Company shall have the right to defer the filing of the Form S-3 registration statement until the completion of such Special Audit (30) days of receipt of and the Company shall, upon the request of such S-3 Initiating Holdersthe Majority Stockholder, gives notice of TPG, Silver Lake or August, as the case may be, use its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement Special Audit to become effectivebe completed expeditiously and without unreasonable delay); or
(viiviii) during if the period starting with Closing Shelf Registration Statement is then effective and available for the date thirty (30) days prior to sale and distribution of such Registration Rights Holder’s or Registration Rights Holders’ Registrable Securities in the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing manner specified in good faith all commercially reasonable efforts to cause such registration statement to become effectiverequest.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon expeditiously as practicable reasonably practical after receipt of the request or requests of the S-3 Initiating HoldersMajority Stockholder, TPG, Silver Lake or August, as the case may be. Registrations effected pursuant to this Section 4.3 shall not be counted as demands for registration or registrations effected pursuant to Section 4.2.
(d) If a requested registration pursuant to this Section 4.3 involves an underwritten offering and regardless of whether the Company is registering any securities therein, the Board shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter.
(e) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.3.
Appears in 2 contracts
Sources: Stockholders Agreement (Crystal Decisions Inc), Stockholders Agreement (Business Objects Sa)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;, or
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than five hundred thousand dollars ($3,000,000;500,000), or
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective, or
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planperiod, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Channeladvisor Corp), Investor Rights Agreement (Channeladvisor Corp)
Form S-3 Registration. After the Initial Offeringits initial public offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 fifty percent (50%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0001,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 pursuant to this Section 1.4;
(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;; or
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety one hundred twenty (90120) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.4 shall not be counted as requests for registration effected pursuant to Section 1.2.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Rubrik, Inc.), Investors’ Rights Agreement (Rubrik, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) or Put Registrable Securities a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities and Put Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities or Put Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities or Put Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.5:
(i) if Form S-3 (or any successor or similar form) is not available for such offering by the Holders;, or
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities or Put Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than five million dollars ($3,000,0005,000,000), or
(iii) if within thirty (30) days of receipt of a written request from the Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company's intention to file a registration statement within sixty (60) days and such registration statements is filed within such sixty (60) day period;
(iiiiv) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 each Holder a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, Company has determined in its reasonable and good faith business judgment that it would be seriously materially detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such timetime because the sale of Registrable Securities covered by such registration statement or the disclosure of information therein or in any related prospectus or prospectus supplement would materially interfere with or otherwise adversely affect in any material respect any acquisition, financing, corporate reorganization or other material transaction or development involving the Company for sales of Registrable Securities thereunder to then be permitted, and setting forth in which event general terms the reasons for such determination, then the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.5; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder capital stock during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planperiod, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);or
(ivv) if the Company has, within the twelve six (126) month period preceding the date of such request, already effected one (1) registration on Form S-3 for the Holders pursuant to this Section 1.4;2.5, or
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and Put Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.5 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Softbank Corp), Investor Rights Agreement (Atviso LTD)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;,
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than two million dollars ($3,000,000;2,000,000),
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement,
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety thirty (9030) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);period,
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 for the Holders pursuant to this Section 1.4;2.4, or
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (HealthWarehouse.com, Inc.), Investor Rights Agreement (New Atlantic Venture Fund Iii L P)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) prior to December 31, 2001;
(ii) if Form S-3 is not available for such offering by the Holders;
(iiiii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0005,000,000;
(iiiiv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such timetime (it being acknowledged that the Investor's decision to sell or any direct or perceived impact of that decision on any related business or commercial relationships between the Investor and the Company shall not be deemed seriously detrimental within the meaning of this provision), in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.4; provided, provided however, that such right shall be exercised by the Company shall not use this right more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);period; or
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.4 shall not be counted as demands for registration or registrations effected pursuant to Sections 1.2 or 1.3.
Appears in 2 contracts
Sources: Investor's Rights Agreement (Nokia Finance International B V), Investor's Rights Agreement (F5 Networks Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 S-3, and any related qualification or compliance compliance, with respect to all or a part Registrable Shares [where the aggregate net proceeds from the sale of the such Registrable Securities owned by such Holder or Holders, Shares equals to at least United States dollars ($ ),] the Company shall:
shall within twenty (a20) promptly days after receipt of any such request give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
, and include in such registration all Registrable Shares held by all such Holders who wish to participate in such registration and provide the Company with written requests for inclusion therein within fifteen (b15) use all commercially reasonable efforts to effectdays after the receipt of the Company's notice. Thereupon, as soon as practicable, the Company shall effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities Shares as are specified in such request, together with all or such portion of the Registrable Securities Shares of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
2.4, (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities Shares and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,000;
United States dollars ($ ); (iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and or its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once [once] in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
period; (iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one [two (1) registration 2)] registrations on Form S-3 for the Holders pursuant to this Section 1.42.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors' Rights Agreement
Form S-3 Registration. After Any Holder (an “Initiating Form S-3 Holder”) may request at any time following the Initial OfferingCompany’s Public Offering that the Company file a registration statement under the Securities Act on Form S-3 (or similar or successor form) covering the sale or other distribution of all or any portion of the Registrable Common Stock held by such Initiating Form S-3 Holder pursuant to Rule 415 under the Securities Act (“Form S-3 Request”) if (i) the Company is a registrant qualified to use Form S-3 (or any similar or successor form) to register such Registrable Common Stock and (ii) the plan of distribution of the Registrable Common Stock is other than pursuant to an underwritten public offering. If such conditions are met, the Company shall use its commercially reasonable efforts to qualify for registration register under the Securities Act on Form S-3 (or any comparable similar or successor form or formsform) at the earliest practicable date, for sale in accordance with the method of disposition specified in the Form S-3 Request, the number of Registrable Common Stock specified in such Form S-3 Request. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) connection with a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersRequest, the Company shall:
(a) promptly give written notice of agrees to include in the proposed registration, and prospectus included in any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicableregistration statement on Form S-3, such registration material describing the Company and all such qualifications and compliances as may be so requested and as would permit or intended to facilitate the sale and distribution of all securities being so registered as is reasonably requested for inclusion therein by the Initiating Form S-3 Holders, whether or such portion not the rules applicable to preparation of Form S-3 require the inclusion of such Holders’ Registrable Securities information. Form S-3 Requests will not be deemed to be Initiating Requests as are specified described in such requestSection 2(a) hereof and Holders shall have the right to request an unlimited number of Form S-3 Requests. Notwithstanding the foregoing, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not file more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration statement on Form S-3 pursuant to this Section 1.4;
(v2(i) in any particular jurisdiction in which given six (6) month period. No registration effected under this Section 2(i) shall relieve 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention obligation to effect the filing of a any registration statement with the SEC within ninety (90upon request under Section 2(a) days of receipt of such request (other than a hereof and no registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b2(i) shall be applicable deemed to such request (with the substitution of Section 1.4 for references have been effected pursuant to Section 1.2)2(a) hereof.
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Spansion Inc.), Registration Rights Agreement (SLS Spansion Holdings, LLC)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 20% of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
: (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
; (iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the CompanyDirectors, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 120 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.4; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) -month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
period; (iv) if the Company has, within the twelve (12) -month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;
; (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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that compliance unless the Company is actively employing already qualified to do business or subject to service of process in good faith all commercially reasonable efforts to cause such registration statement to become effectivethat jurisdiction; or
or (viivi) during the period starting with the date thirty (30) ending 90 days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following after the effective date of a Company-initiated registration statement subject to Section 1.3 above1.3, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause unless such registration statement is pursuant to become effectivean initial public offering, in which case the period shall be 180 days.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.4 shall not be counted as demands for registration or registrations effected pursuant to Sections 1.2 or 1.3, respectively.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Expensify, Inc.), Investors’ Rights Agreement (Expensify, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities a Major Investor (for purposes of this Section 1.4, the “S-3 Initiating Holders”as defined below) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersMajor Investor, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Major Investor’s Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0005,000,000;
(iii) during the period that is 30 days before the Company’s good faith estimate of the filing of a Company-initiated registration statement (other than a Special Registration Statement) pertaining to a public offering and ending on the date 90 days following the effective date of such Company-initiated registration statement; provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective;
(iv) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the Major Investor a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating Holders, such Major Investor under this Section 2.4; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) 12 month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivv) if the Company has, within the twelve (12) 12 month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;2.4; or
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2. All Registration Expenses incurred in connection with registrations requested pursuant to this Section 2.4 after the first two registrations have been declared effective shall be paid by the selling Holders pro rata in proportion to the number of shares to be sold by each such Holder in any such registration.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Tricida, Inc.)
Form S-3 Registration. After Subject to the Initial OfferingLock-up Agreement, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In in case the Company shall receive at any time from (1) the Institutional Investor, so long as the Institutional Investor and its Affiliates hold at least 25% of the Shares (determined on an as converted to Common Stock basis) held by the Institutional Investor and its Affiliates as of the date hereof, or (2) in the event the Institutional Investor and its Affiliates do not hold at least 25% of the Shares (determined on an as converted to Common Stock basis) held by the Institutional Investor and its Affiliates as of the date hereof, then the Holders of at least 5,000,000 50% of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by the Institutional Investor or such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, file such registration statement and use its commercially reasonable efforts to have such registration statement declared effective and obtain all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of the Institutional Investor’s or such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen ten (1510) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:
2.3: (i) prior to the first anniversary date of the Closing Date (as defined in the Stock Purchase Agreement); (ii) if Form S-3 is not available for such offering by the Institutional Investor or the Holders;
; (iiiii) if the Institutional Investor and the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an anticipated aggregate offering price to the public (net of any underwriters’ discounts or commissions) of less than twenty-five million dollars ($3,000,000;
25,000,000); or (iiiiv) if the Company shall furnish to all the Institutional Investor and the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith and reasonable judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such timetime (but excluding any detriment to the Company solely as a result of its impact on the share price), in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersInstitutional Investor or the Holder or Holders under this Section 2.3; provided, provided that such right to delay a request shall be exercised by the Company not more than once twice in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself period; or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if after the Company has, within the twelve has effected four (124) month period preceding the date of such request, already effected one (1) registration registrations on Form S-3 pursuant to this Section 1.4;
(v) 2.3 and such registrations have been declared or ordered effective. Notwithstanding the foregoing, any expenses 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement connection with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated or attempted registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveshall be Registration Expenses.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as reasonably practicable after receipt of the request or requests of the Institutional Investor or such Holders. Registrations effected pursuant to this Section 2.3 shall not be counted as a demand for registration or registrations effected pursuant to Sections 2.1 or 2.2, respectively.
(d) The Company shall not grant to any other Person the right to request the Company to register any shares of Common Stock in an S-3 Initiating Holdersregistration unless such rights are consistent with the provisions hereof, except in the case of a Form S-3 registration statement filed to register any shares of Common Stock issued in connection with any acquisition, merger or similar transaction by the Company.
Appears in 2 contracts
Sources: Preemptive and Registration Rights Agreement (Privatebancorp, Inc), Preemptive and Registration Rights Agreement (GTCR Fund Ix/B L P)
Form S-3 Registration. After the Initial Offeringits IPO, the Company shall use its commercially reasonable --------------------- best efforts to qualify for registration on Form S-3. After the Company has qualified for the use of Form S-3, in addition to the rights contained in the foregoing provisions of this Section 1, any Holder or Holders of Registrable Securities shall have the right to request registration on Form S-3 (all such requests shall be in writing and shall state the number of shares of Registrable Securities to be disposed of and the intended methods of disposition of such shares by such Holder or any comparable or successor form or formsHolders); provided, that the Company shall not be obligated to so register if the total registered securities, in the aggregate, represent less than $1,000,000 in value (based upon the anticipated consideration received therefor). In case the Company shall receive from the a Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related state securities qualification or blue sky compliance with respect to all or a part such an amount of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, use its best efforts to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder of Holders joining in such request as are specified in a written request given within fifteen (15) 20 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not -------- ------- be obligated to effect any such registration, qualification, or compliance pursuant to this Section 1.7 if Form S-3 is not available for such offering by Holder(s). Provided however, that the Company shall not be obligated to take any action to effect any such registration, qualification qualification, or compliance, compliance pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders1.7;
(iiA) if In any jurisdiction in which the HoldersCompany would be required to execute a general consent to service of process in effecting such registration, together qualification, or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(B) During the period starting with the holders date sixty (60) days prior to the Company's estimated date of filing of, and ending on the date one hundred eighty (180) days immediately following the effective date of any other registration statement pertaining to securities of the Company entitled (other than a registration of securities in a Rule 145 transaction or with respect to inclusion an employee benefit plan); provided that the Company is actively employing in good -------- faith all reasonable efforts to cause such registration, propose registration statement to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;become effective; or
(iiiC) if If the Company shall furnish to all such Holder or Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and or its stockholders shareholders for such a registration statement to be effected at such timefiled in the near future, in which event case the Company Company's obligation to use its reasonable efforts to register, qualify or comply under this Section 1.7 shall have the right to defer such filing be deferred for a period of not more than ninety (90) to exceed 120 days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding from the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the written request of from such S-3 Initiating Holder or Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to may not exercise this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a)deferral right more than once within any 12 month period. The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall effect such registration, qualification, or compliance (including, without limitation, the execution of an undertaking to file a registration statement post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holder. If the registration to be effected pursuant to the Section 1.7 is to be an underwritten public offering, it shall be managed by an underwriter or underwriters selected by the Company and reasonably acceptable to a majority in interest of the Holders requesting registration. In such event, the right of any Holder to registration pursuant to this Section 1.7 shall be conditioned upon the participation by such Holder in such underwriting and the inclusion of the Registrable Securities of such Holder in the underwriting to the extent provided herein. If the managing underwriter so selected determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit the Registrable Securities held by such Holders to be included in such registration. The Company shall so advise such Holders, and the number of shares of Registrable Securities that may be included in the registration shall be allocated among the Holders and other holders as follows: first, among the Holders in proportion to the respective amounts of Registrable Securities held by each of such Holders at the time of filing of the registration statement and second, to the other holders in proportion as nearly as practicable, to the amount of Stock entitled to inclusion in such registration. Any Registrable Securities or other securities that are so excluded from the underwriting shall be excluded from the registration. As used throughout this Section the term "Form S-3" shall be deemed to include any equivalent successor form for registration pursuant to the Act.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Esperion Therapeutics Inc/Mi), Investors' Rights Agreement (Esperion Therapeutics Inc/Mi)
Form S-3 Registration. After (a) Notwithstanding the Initial Offeringprovisions of Sections 2.1, and 2.2, at such time as the Company Corporation shall have qualified for the use its commercially reasonable efforts to qualify for registration on of Form S-3 promulgated under the Securities Act or any comparable or successor form or forms. In thereto, in case the Company Corporation shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, BlackRock Members or the “S-3 Initiating Holders”) Highfields Members a written request or requests that the Company Corporation effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned held by such Holder or HoldersSponsor Members, the Company shall:
which request shall (a) promptly give written notice specify the number of Registrable Securities intended to be sold or disposed of and the proposed registration, holders thereof and any related qualification or compliance, to all other Holders; and
(b) the intended method of distribution, including the name of the lead underwriter, if available, the Corporation will use all its commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company Corporation shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.3:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose requesting stockholder proposes to sell Registrable Securities and such other securities (if any) at an that would result in aggregate price to the public (net of any underwriters’ discounts or commissions) gross proceeds of less than $3,000,00010,000,000;
(ii) if within 30 days of receipt of a written request from the stockholder pursuant to this Section 2.3, the Corporation gives notice to such stockholder of the Corporation’s intention to make a public offering within 90 days, other than pursuant to a Registration Statement relating to any employee benefit plan or with respect to any reorganization or other transaction under Rule 145 of the Securities Act (or successor rule thereto);
(iii) if the Company shall furnish to a Shelf Registration is then effective and includes all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities of such Sponsor Member and permits an underwritten offering of such Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, Corporation has already effected one (1) registration 3 registrations on Form S-3 pursuant to this Section 1.4;for the requesting Holders in the immediately preceding 12-month period; or
(v) in any particular jurisdiction in which the Company Corporation 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;.
(vib) if To the Company, within thirty (30) days of receipt of extent the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect Corporation is a WKSI at the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided time that the Company Shelf Registration Statement is actively employing in good faith all commercially reasonable efforts to cause be filed, the Corporation shall file an automatic Shelf Registration Statement which covers such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveRegistrable Securities.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made Registrations effected pursuant to this Section 1.4 and the Company 2.3 shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall not be applicable to such request (with the substitution of Section 1.4 counted as demands for references registrations effected pursuant to Section 1.2)2.1.
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pennymac Financial Services, Inc.), Registration Rights Agreement (Pennymac Financial Services, Inc.)
Form S-3 Registration. After the Initial Offering, (a) Request for a Form S-3 Registration. Upon the Company shall becoming eligible for use its commercially reasonable efforts to qualify for registration on of Form S-3 or any comparable or successor form or forms. In case under the Securities Act in connection with a secondary public offering of its equity securities, in the event that the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) Holders a written request or requests that the Company effect a registration register under the Securities Act on Form S-3 and any related qualification or compliance with respect to (an “S-3 Registration”) the sale of all or a part portion of the Registrable Securities owned by such Holder or S-3 Initiating Holders (which S-3 Registration may be a shelf registration pursuant to Rule 415 promulgated under the Securities Act, in which case the provisions of Section 5(f) shall apply), the Company shall give written notice of such request to all of the other Designated Stockholders (other than S-3 Initiating Holders) as promptly as practicable but in no event later than ten Business Days before the anticipated filing date of such Form S-3, which notice shall describe the proposed registration, the intended method of disposition of such Registrable Securities and any other information that at the time would be appropriate to include in such notice, and offer such other Designated Stockholders the opportunity to register the number of Registrable Securities as each such Designated Stockholder may request in writing to the Company, given within ten Business Days of the date on which the Company sent the written notice of such registration. Each request for an S-3 Registration by the S-3 Initiating Holders shall state the type and number of the Registrable Securities proposed to be registered and the intended method of disposition thereof. With respect to each S-3 Registration, the Company shall:
, subject to Section 5(b) hereof, (ai) promptly give written notice include in such offering the Registrable Securities of the proposed registrationS-3 Initiating Holders and the Designated Stockholders who have requested in writing to participate in such registration on the same terms and conditions as the Registrable Securities of the S-3 Initiating Holders included therein (collectively, the “S-3 Participating Stockholders”) and any related qualification or compliance, to all other Holders; and
(bii) use all its commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in file a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price Registration Statement relating to the public S-3 Registration (net of any underwriters’ discounts or commissionstaking into account, among other things, accounting and regulatory matters) of less than $3,000,000;
(iii) if the Company shall furnish and to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and use its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement Registration Statement to become effective; or
(vii) during effective as promptly as practicable but in no event later than one hundred twenty days after it receives a request under this Section 5(a). Notwithstanding the period starting with foregoing, immediately upon determination of the date thirty (30) days prior price at which such Registrable Securities are to be sold in a S-3 Registration that is a firm commitment underwritten public offering, if such price is below the price which the S-3 Initiating Holders find acceptable, the S-3 Initiating Holders shall then have the right, by written notice to the Company’s good faith estimate of , to withdraw their Registrable Securities from being included in such offering; provided, that such a withdrawal by the date of the filing of S-3 Initiating Holders shall constitute and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith effect an automatic withdrawal by all commercially reasonable efforts to cause such registration statement to become effective.
(c) other S-3 Participating Stockholders. If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwritingrequest, they shall so advise and if the Company as is a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoingWell-Known Seasoned Issuer, the Company shall file a registration statement covering cause such S-3 Registration to be made pursuant to an Automatic Shelf Registration Statement and may omit the names of the S-3 Participating Stockholders and the amount of the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holdersoffered thereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ply Gem Holdings Inc), Registration Rights Agreement (Ply Gem Holdings Inc)
Form S-3 Registration. After From and for so long as the Initial OfferingCompany is eligible to use Form S-3 with respect to the registration under the Securities Act of Registrable Securities, the Company Purchaser shall use its commercially reasonable efforts be entitled to qualify for registration request two (2) registrations of Registrable Securities on a Form S-3 or any comparable or successor form or formsregistration statement. In case If the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) any Purchaser or Purchasers a written request or requests that the Company effect such a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder Purchaser or HoldersPurchasers, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersPurchasers; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Purchaser's or Purchasers' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Purchaser or Purchasers joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
3.5, (i1) if Form S-3 -▇▇- ▇▇▇▇ ▇-▇ is not available for such offering by the Holders;
Purchasers; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii2) if the Company shall furnish to all Holders requesting a registration statement has already effected two registrations on Form S-3 for the Purchasers pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer 3.5; or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(v3) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating HoldersPurchasers. All Registration Expenses incurred in connection with a registration requested pursuant to this Section shall be borne by the Company. Registrations effected pursuant to this Section shall not be counted as demands for registration or registrations effected pursuant to Section 3.1.
Appears in 2 contracts
Sources: Investor's Rights Agreement (Wj Communications Inc), Investor's Rights Agreement (Wj Communications Inc)
Form S-3 Registration. (i) After the Initial Offering, the Company shall use its commercially reasonable efforts is eligible to qualify for registration register Registrable Securities on Form S-3 or any comparable or successor form or forms. In case S-3, each Holder shall have the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that right to demand the Company effect a registration with respect to all or a part of its Registrable Securities on Form S-3 and any related qualification or compliance with respect compliance. Any such demand shall not be considered a demand registration request pursuant to all or a part Section 3(a). Upon receipt of the Registrable Securities owned by such Holder or Holderswritten request, the Company shall:
, as soon as practicable, (ai) promptly give written notice of the proposed registrationregistration to all other Holders, and any related qualification or and compliance, to all other Holders; and
and (bii) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Holder's Registrable Securities as are specified in such request, request together with all or such portion of the Registrable Securities of requested to be included by any other Holders joining who notify the Company in such request as are specified in a written request given writing within fifteen (15) 10 business days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:3(b):
(iA) if Form S-3 is not available for such offering by the HoldersHolder;
(iiB) if the HoldersHolder, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than Five Million Dollars ($3,000,0005,000,000);
(iiiC) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the Holder a certificate signed by the Company’s President or Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement no more than once during any twelve (12) month period for a period of not more than ninety one hundred eighty (90180) days after following receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction Holder under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registeredthis Section 3(b);
(ivD) if the Company has, within the twelve (12) 12 month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;3(b); provided, however, if all of the Holders' Registrable Securities requested to be included in the prior registration were not included in the prior registration as a result of cutback provisions imposed by a managing underwriter pursuant to Section 3(c) below, then the Holders shall have the right to demand one (1) additional registration on Form S-3 during such 12-month period; or
(vE) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 2 contracts
Sources: Investor Rights Agreement (Clearwire Corp), Investor Rights Agreement (Clearwire Corp)
Form S-3 Registration. After Subject to the Transfer restrictions set forth in Sections 3.1 and 3.2, if, at any time during the period commencing as of the end of the Initial OfferingShare Holding Period and ending on the ten-year anniversary of the Closing Date, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive receives from the Holders of at least 5,000,000 Registrable Securities Majority Stockholder, or from Silver Lake, TPG or August after the Majority Stockholder has distributed Subject Shares pursuant to Section 3.3 (for purposes of this Section 1.4, the “each an "S-3 Initiating Holders”) Party"), a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder S-3 Initiating Party or HoldersS-3 Initiating Parties, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holdersthe Managing Registration Rights Holders (each of which Managing Registration Rights Holder will notify each of the Permitted Transferees of such Managing Registration Rights Holder that holds Registrable Securities); and
(b) use all commercially reasonable efforts to effectas expeditiously as reasonably practical, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ S-3 Initiating Party's or S-3 Initiating Parties' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Registration Rights Holder or Registration Rights Holders joining in such request as are specified in a written request given delivered to the Company by the Managing Registration Rights Holders within fifteen fourteen (1514) days after receipt of such written notice from the Company, provided, however, ; provided that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.44.3:
(i) if Form S-3 (or any successor form) is not available for such offering by the Registration Rights Holders;; or
(ii) if (x) the requested registration pursuant to this Section 4.3 involves an underwritten offering, and (y) the Registration Rights Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;20,000,000; or
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by Registration Rights Holders, together with the Company’s Chief Executive Officer or Chairman holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000; or
(iv) if the Company is in possession of material non-public information and the Board determines in good faith that disclosure of Directors stating that such information would not be in the good faith judgment best interests of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timestockholders, in which event case the filing of the registration statement may be delayed until the earlier of the second Business Day after such conditions shall have ceased to exist and the 120th day after receipt by the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the written request of from the S-3 Initiating HoldersMajority Stockholder, provided TPG, Silver Lake or August, as the case may be, to register Registrable Securities under this Section 4.3(a); provided, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);period; or
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration on Form S-3 statements for any of the Registration Rights Holders pursuant to this Section 1.4;4.3, Section 4.1 or Section 4.2; or
(vvi) 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;compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; or
(vivii) if with respect thereto, the Companymanaging underwriter, within thirty the SEC, the Securities Act, or the form on which the registration statement is to be filed, would require the conduct of a Special Audit, in which case the Company shall have the right to defer the filing of the Form S-3 registration statement until the completion of such Special Audit (30) days of receipt of and the Company shall, upon the request of such S-3 Initiating Holdersthe Majority Stockholder, gives notice of TPG, Silver Lake or August, as the case may be, use its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement Special Audit to become effectivebe completed expeditiously and without unreasonable delay); or
(viiviii) during if the period starting with Closing Shelf Registration Statement is then effective and available for the date thirty (30) days prior to sale and distribution of such Registration Rights Holder's or Registration Rights Holders' Registrable Securities in the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing manner specified in good faith all commercially reasonable efforts to cause such registration statement to become effectiverequest.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon expeditiously as practicable reasonably practical after receipt of the request or requests of the S-3 Initiating HoldersMajority Stockholder, TPG, Silver Lake or August, as the case may be. Registrations effected pursuant to this Section 4.3 shall not be counted as demands for registration or registrations effected pursuant to Section 4.2.
(d) If a requested registration pursuant to this Section 4.3 involves an underwritten offering and regardless of whether the Company is registering any securities therein, the Board shall have the right to select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter.
(e) The Company will pay all Registration Expenses in connection with each registration of Registrable Securities requested pursuant to this Section 4.3.
Appears in 2 contracts
Sources: Stockholders Agreement (Crystal Decisions Inc), Stockholders Agreement (Business Objects Sa)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration and remain qualified to register securities on Form S-3 (or any comparable or successor form or formsto Form S-3). In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Senior Preferred Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short form registration statement and any related qualification or compliance with respect to all or a part of the Senior Preferred Registrable Securities owned by such S-3 Initiating Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Senior Preferred Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicablepracticable and in any event within 45 days after the receipt of such request, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Senior Preferred Registrable Securities as are specified in such request, together with all or such portion of the Senior Preferred Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;, or
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Senior Preferred Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than one million dollars ($3,000,000;1,000,000), or
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement provided that such Holders were permitted to register such shares as requested to be registered pursuant to Section 2.3 hereof without reduction by the underwriter thereof and provided, further, that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chairman of the Board (or, if no Chairman has been appointed, then the Chief Executive Officer or Chairman President of the Board of Directors Company) stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period period, and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);period; or
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.4;2.4, or
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that unless the Company is actively employing in good faith all commercially reasonable efforts otherwise required to cause such registration statement to become effective; ordo so.
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Senior Preferred Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Procore Technologies, Inc.), Investor Rights Agreement (Procore Technologies, Inc.)
Form S-3 Registration. After Following the Initial OfferingQualified IPO, the Company shall use its commercially reasonable best efforts to qualify for registration on Form S-3 or any comparable or successor form or formsfor secondary sales. In case After the Company has qualified for the use of Form S-3, if the Company shall receive from the Holders of at least 5,000,000 twenty-five percent (25%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially its reasonable best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
: (i) if Form S-3 is not available for such offering by the Holders;
Holders under applicable law; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) pursuant to such registration at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
1,000,000; (iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 1.4, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating Holders; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) -month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
period; (iv) if the Company has, within the twelve (12) 24-month period preceding the date of such request, already effected one (1) such registration on Form S-3 for the Holders pursuant to this Section 1.4;
; (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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that compliance unless the Company is actively employing already qualified to do business or subject to service of process in good faith all commercially reasonable efforts to cause such registration statement to become effectivethat jurisdiction; or
or (viivi) during the period starting with the date thirty (30) ending 180 days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following after the effective date of a Company-initiated registration statement subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective1.3.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions In such event, the right of Section 1.2(b) any Holder to include its Registrable Securities in such registration shall be applicable conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the S-3 Initiating Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such request (underwriting shall enter into an underwriting agreement in customary form with the substitution underwriter or underwriters selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to a majority in interest of the S-3 Initiating Holders). Notwithstanding any other provision of this Section 1.4 for references 1.4, if the underwriter advises the Company that marketing factors require a limitation of the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares that may be included in the underwriting shall be allocated to Section 1.2the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the S-3 Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded. Any Registrable Security excluded or withdrawn from such underwriting shall be withdrawn from the registration.
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.4 shall not be counted as demands for registration or registrations effected pursuant to Sections 1.2 or 1.3, respectively.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Enphase Energy, Inc.), Investors’ Rights Agreement (Enphase Energy, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive at any time after the completion of the first registration statement for a public offering of securities of the Company (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a written request from the Holders of at least 5,000,000 twenty five percent (25%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests then outstanding that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen twenty (1520) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
1.11: (i1) if Form S-3 is not available for such offering by the Holders;
; (ii2) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ underwriting discounts or commissions) of less than $3,000,000;
500,000; (iii3) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by has already effected during the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any previous twelve (12) month period and provided further that the Company shall not register two (2) registrations on Form S-3, or any securities equivalent successor form, for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 Holders pursuant to this Section 1.4;
1.11; or (v4) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. All expenses incurred in connection with a registration requested pursuant to this Section 1.11, including, without limitation, all registration, filing, qualification, printers' and accounting fees and the reasonable fees and disbursements of one (1) counsel for the selling Holder or Holders and counsel for the Company, but excluding any underwriting discounts or commissions associated with Registrable Securities, shall be borne by the Company. Registrations effected pursuant to this Section 1.11 shall not be counted as registrations effected pursuant to Sections 1.2 or 1.3.
(d) The Company shall not be obligated to effect any registration pursuant to this Section 1.11 if the Company delivers to the Holders requesting registration under this Section 1.11 an opinion, in form and substance acceptable to such Holders, of counsel satisfactory to such Holders, that the Registrable Securities so requested to be registered may be sold or transferred pursuant to Rule 144(k) under the Act.
Appears in 2 contracts
Sources: Investor's Rights Agreement (Iat Multimedia Inc), Stock Purchase Agreement (Iat Multimedia Inc)
Form S-3 Registration. After the Initial Offeringfirst public offering of its Common Stock registered under the Securities Act, the Company shall use its commercially reasonable efforts to qualify for registration and remain qualified to register securities on Form S-3 (or any comparable or successor form or formsform) under the Securities Act. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give at least thirty (30) days written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
2.11: (i1) if Form S-3 is not available for such offering by the Holders;
; (ii2) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than Two Million Dollars ($3,000,000;
2,000,000); or (iii3) if (i)(A) the Company shall furnish is in possession of material non-public information, (B) an Executive Officer, after consultation with the Board, reasonably determines that such prohibition is necessary in order to all Holders requesting avoid an obligation to disclose such information and (C) the Executive Officer, after consultation with the Board, determines in good faith that disclosure of such information would not be in the best interest of the Company or its stockholders or (ii) the Company has made a public announcement relating to an acquisition or business combination transaction including the Company and/or one or more of its subsidiaries for which the Executive Officer, after consultation with the Board, determines in good faith that offers and sales of Registrable Securities pursuant to a registration statement pursuant prior to this Section 1.4 a certificate signed by the Company’s Chief consummation of such transaction (or such earlier date as the Executive Officer or Chairman Officer, after consultation with the Board shall determine) would not be in the best interest of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and or its stockholders for such registration statement to be effected at such timestockholders, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.11; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveperiod.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.11 shall not be counted as demands for registration or registrations effected pursuant to Sections 2.1 or 2.2, respectively.
Appears in 2 contracts
Sources: Registration Rights Agreement (Applied Optoelectronics, Inc.), Registration Rights Agreement (Applied Optoelectronics, Inc.)
Form S-3 Registration. After (a) Subject to the Initial Offeringconditions of this Section 1.12, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case if the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) any Holder a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersHolder(s), then the Company shall:
shall (a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
Holders and (b) use all commercially reasonable its best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Holder joining in such request as are specified in a written request given within fifteen (15) calendar days after receipt of the date the Company's notice referred to in clause (a) of this sentence is given.
(b) If the Holders requesting registration pursuant to this Section 1.12 intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 1.12 and the Company shall include such information in the written notice referred to in clause (a) of Section 1.12(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Holders requesting registration. In such event, the right of any Holder to include his Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such written notice from Holder's Registrable Securities in the Companyunderwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 1.12, if the underwriter advises the Holders requesting registration in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all Holders holding Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated first among all Holders thereof, including the Holders requesting registration, in proportion (as nearly as practicable) to the amount of Registrable Securities requested by each such Holder to be included in such underwriting; provided, however, that the Company number of shares of Registrable Securities to be included in such underwriting shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such reduced unless all other securities (if anyincluding those to be sold for the Company's account) at an aggregate price to are first entirely excluded from the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;underwriting.
(iiic) Notwithstanding the foregoing, if the Company shall furnish to all Holders the Holder(s) requesting a registration statement pursuant to this Section 1.4 1.12, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors 's President stating that in the good faith judgment of the Company's Board of Directors of the CompanyDirectors, it such registration would be seriously detrimental to the Company and its stockholders for and that it is, therefore, essential to defer taking action with respect to such registration statement to be effected at such timeregistration, in which event the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) calendar days after receipt of the date the request of the S-3 Initiating HoldersHolder(s) requesting a registration pursuant to this Section 1.12 is given; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) month period and period; provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered).
(d) In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 1.12:
(i) if Form S-3 is not available for such offering by the Holders;
(ivii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000;
(iii) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.41.12;
(iv) during the period starting with the date sixty (60) calendar days prior to the Company's good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) calendar days after the effective date of, any registration statement pertaining to a public offering of securities for the Company's account subject to Section 1.3; provided that the Company is actively employing its best efforts to cause such registration statement to be effective; 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that compliance unless the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration already subject to Section 1.3 above, provided that service in such jurisdiction and except as may be required by the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveAct.
(ce) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made Registrations effected pursuant to this Section 1.4 and the Company 1.12 shall include such information in the written notice referred not be counted as demands for registration or registrations effected pursuant to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2)Sections 1.2 or 1.3, respectively.
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Altiris Inc), Investors' Rights Agreement (Altiris Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than five hundred thousand ($3,000,000500,000);
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days of receipt of such written request and 90 days after the effective date of such registration statement, provided that the Company makes reasonable good faith efforts to cause such registration statement to become effective, other than pursuant to a Special Registration Statement;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety sixty (9060) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4period;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 2 contracts
Sources: Investor Rights Agreement (Instructure Inc), Investor Rights Agreement (Instructure Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than one million dollars ($3,000,0001,000,000);
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.4;2.4; or
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Sections 2.2 or 2.3, respectively. All Registration Expenses incurred in connection with registrations requested pursuant to this Section 2.4 after the first two (2) registrations shall be paid by the selling Holders pro rata in proportion to the number of shares sold by each such Holder.
Appears in 2 contracts
Sources: Investor Rights Agreement (Codexis Inc), Investor Rights Agreement (Codexis Inc)
Form S-3 Registration. After the Initial Offering, 3.1 At any time after the Company shall use its commercially reasonable efforts becomes eligible to qualify for registration file a Registration Statement on Form S-3 (or any comparable or successor form or forms. In case relating to secondary offerings, hereinafter, “Form S-3”), holders of a majority of the Registrable Shares will have the right to require the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company to effect a registration on Form S-3 of Registrable Shares provided that the aggregate public offering price (before deduction of underwriters’ discounts and any related qualification or compliance with respect to all or a part commissions) of the Registrable Securities owned by shares of Common Stock offered in such Holder registration equals or Holdersexceeds $1,000,000. Upon receipt of any such request, the Company shall:
(a) shall promptly give written notice of such proposed registration to all Holders. Such other Holders shall have the proposed registrationright, and any related qualification or complianceby giving written notice to the Company within 30 days after the Company provides its notice, to all other Holders; and
(b) elect to have included in such registration such of their Registrable Shares as such Stockholders may request in such notice of election. Thereupon, the Company shall, as expeditiously as possible, use all commercially reasonable its best efforts to effect, as soon as practicable, such effect the registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution on Form S-3 of all or such portion Registrable Shares that the Company has been requested to register. If the registration is for an underwritten offering, the provisions of such Holders’ Registrable Securities as are specified Section 2.3 shall be applicable; provided, that in such requestcircumstances, together with all or such portion of the Registrable Securities of any other Holders joining references in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from Section 2.3 shall be deemed references to Section 3.
3.2 Notwithstanding the Companyforegoing, provided, however, that the Company shall not be obligated to effect take any such registration, qualification or compliance, action pursuant to this Section 1.4:3
(ia) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of after the Company entitled to inclusion in has effected two (2) such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement registrations pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once 3 in any twelve (12) month period and provided further that such registrations pursuant to this Section 3, and such registrations have been declared or ordered effective; or
(b) if the Company shall not register any securities Registrable Securities for which the account Holder(s) are requesting registration are then eligible for sale under Rule 144 of itself or any other stockholder during the Securities Act, and such Registrable Securities reasonably can be disposed within a ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planperiod, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration based on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectivehistorical trading volume.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 2 contracts
Sources: Registration Rights Agreement (dELiAs, Inc.), Registration Rights Agreement (dELiAs, Inc.)
Form S-3 Registration. After (a) Subject to the Initial Offeringconditions of this Section 1.12, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case if the Company shall receive from at least thirty percent (30%) of the Holders of at least 5,000,000 the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersHolder(s), then the Company shall:
shall (a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
Holders and (b) use all commercially reasonable its best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Holder joining in such request as are specified in a written request given within fifteen (15) calendar days of the date the Company’s notice referred to in clause (a) of this sentence is given.
(b) If the Holders requesting registration pursuant to this Section 1.12 intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 1.12 and the Company shall include such information in the written notice referred to in clause (a) of Section 1.12(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Holders requesting registration. In such event, the right of any Holder to include his Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 1.12, if the underwriter advises the Holders requesting registration in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Holders requesting registration shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders electing to include shares in the underwriting, including the Holders requesting registration, in proportion (as nearly as practicable) to the amount of Registrable Securities requested by each such Holder to be included in such underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to the Holder(s) requesting a registration pursuant to this Section 1.12 a certificate signed by the Company’s President stating that, in the good faith judgment of the Board, such registration would be seriously detrimental to the Company and its stockholders and that it is, therefore, essential to defer taking action with respect to such registration, the Company shall have the right to defer taking action with respect to such filing for a period of not more than one hundred twenty (120) calendar days after receipt the date the request of such written notice from the Company, Holder(s) requesting a registration pursuant to this Section 1.12 is given; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period.
(d) In addition, the Company shall not be obligated to effect effect, or to take any such registrationaction to effect, qualification or compliance, any registration pursuant to this Section 1.41.12:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0001,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 for the Holders pursuant to this Section 1.41.12;
(iv) during the period starting with the date sixty (60) calendar days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) calendar days after the effective date of, any registration statement pertaining to a public offering of securities for the Company’s account to which Section 1.3 applies; provided that the Company is actively employing its best efforts to cause such registration statement to be effective; 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that compliance unless the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration already subject to Section 1.3 above, provided that service in such jurisdiction and except as may be required by the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveAct.
(ce) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means For a maximum of an underwriting, they shall so advise the Company as a part of their request made five (5) registrations pursuant to this Section 1.4 1.12, all expenses incurred in connection with a registration requested pursuant to this Section 1.12 (other than underwriting discounts and commissions but including the reasonable and customary fees and disbursements of one counsel for the Holders), including (without limitation) all registration, filing, and qualification fees, printer’s fees, accounting fees and fees and disbursements of counsel for the Company, shall be borne by the Company; provided, however, that the Company shall include such information in not be required to pay for any expenses of any registration proceeding begun pursuant to this Section 1.12 if the written notice referred to in Section 1.4(a). The provisions registration request is subsequently withdrawn at the request of Section 1.2(b) shall be applicable to such request (with the substitution Holders of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file at least a registration statement covering majority of the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt (in which case all participating Holders shall bear such expenses), unless the Holders of at least a majority of the request Registrable Securities agree to forfeit their right to one (1) registration pursuant to this Section 1.12; provided further, however, that if, at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business or requests prospects of the S-3 Initiating HoldersCompany from that known to the Holders at the time of their request and have withdrawn the request with reasonable promptness following disclosure by the Company of such material adverse change, then the Holders shall not be required to pay any of such expenses and shall not forfeit their right to one (1) registration pursuant to Section 1.12. Registrations effected pursuant to this Section 1.12 shall not be counted as demands for registration or registrations effected pursuant to Section 1.2 or 1.3, respectively.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Capnia, Inc.), Investors’ Rights Agreement (Capnia, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 seventy percent (70%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effectto, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen thirty (1530) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 (or any successor or similar form) is not available for such offering by the HoldersCompany;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, Holders propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than Two Million Dollars ($3,000,0002,000,000);
(iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors CEO stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously materially detrimental to the Company and its stockholders for such registration statement to be effected at filed because such timeaction (i) materially interferes with a significant acquisition, in which event corporate reorganization, or other similar transaction involving the Company, (ii) would require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential or (iii) would render the Company unable to comply with requirements under the Securities Act or Exchange Act, the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the S-3 Initiating Holders; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once twice in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);12)-month period; or
(iv) if the Company has, has effected one registration pursuant to this Section 2.4 within the twelve (12) month period immediately preceding the date of such request, already . Registrations effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(v) in any particular jurisdiction in which the Company would 2.4 shall not be required to qualify to do business counted as demands for registration or to execute a general consent to service of process in effecting such registration, qualification or compliance;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration registrations effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective2.2.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 2 contracts
Sources: Investor Rights Agreement (TELA Bio, Inc.), Investor Rights Agreement (TELA Bio, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. (a) In case the Company shall receive written notice from the Holders of at least 5,000,000 thirty percent (30%) of the Registrable Securities (for purposes of this Section 1.4, owned by the “S-3 Initiating Holders”) a written request or requests Series A and/or B Investors requesting that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(bii) use all commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, howeverthat if less than all of the Registrable Securities shall be registered, that Holders shall participate in such registration on the basis of the procedure described in Section 1.3(c).
(b) The Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,0001,000,000;
(iii) if the Company shall furnish to all the Holders requesting who request a registration statement pursuant to this Section 1.4 hereunder a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.4; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 for the Holders of the class of Registrable Securities requesting an additional registration hereunder pursuant to this Section 1.4;; 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 fifteen percent (15%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.43.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than two million dollars ($3,000,0002,000,000);
(iii) if within thirty (30) days of receipt of a written request from Initiating Holders pursuant to Section 3.2(a), the Company gives notice to the Holders of the Company's intention to make a public offering within ninety (90) days;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.for
Appears in 1 contract
Form S-3 Registration. After Following the Initial Offeringinitial offering of the Company's securities to the general public, the Company will use its best efforts to qualify for the registration of its securities on Form S-3 (or any comparable or successor form which allows inclusion or incorporation of substantial information by reference to other documents filed with the SEC) and, to that end, the Company shall use register (whether or not required by law to do so) its commercially reasonable efforts to qualify for Common Stock under the Securities Exchange Act in accordance with the provisions of the Securities Exchange Act within twelve (12) months following the effective date of the first registration of any securities of the Company on Form S-3 Forms S-1 or S-2 (or any comparable or successor form or forms). In case After the Company shall receive from has qualified for the use of Form S-3, the Holders shall have the right to request an unlimited number of at least 5,000,000 registrations of Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or such comparable or successor forms). Such requests shall be in writing and any related qualification or compliance with respect to all or a part shall state the number of the shares of Registrable Securities owned to be disposed of and the intended methods of disposition of such shares by such Holder or Holders). If the Company receives such a written request from the Holders of not less than one percent (1%) of the Registrable Securities outstanding from time to time, the Company shall:
(a) promptly give written notice of the proposed registration, registration and any related qualification or compliance, compliance to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen ten (1510) business days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliancequalification, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Sources: Investor Rights Agreement (Persistence Software Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall shall, on or after --------------------- the date on which the Company first becomes eligible to file a Registration Statement on Form S-3, receive from any Holder or Holders owning in the Holders of aggregate at least 5,000,000 thirty percent (30%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) promptly use all commercially its reasonable best efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be reasonably so requested and as would permit or and facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 30 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.41.2:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,0001,000,000;
(iii) if the Company, within ten (10) days of the receipt of the request of the Shareholders gives notice of its bona fide intention to effect the filing of a registration statement with the Commission within ninety (90) days of receipt of such request;
(iv) during the period starting with the date sixty (60) days prior to the Company's good faith estimate of the date of filing of, and ending on the date 180 days immediately following the effective date of, any registration statement pertaining to securities of the Company, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
(v) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the Shareholders a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders Shareholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 120 days after receipt of the request of the S-3 Initiating HoldersShareholders under this Section 1.2; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivvi) if the Company has, within the twelve (12) month period preceding since the date of such requestthis Agreement, already effected filed one (1) registration statement on Form S-3 either for the Holders pursuant to this Section 1.4;1.2 or for any other holders of Company Securities pursuant to any other registration rights agreement (provided Section 2.10 of this Agreement was complied with); or
(vvii) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement on Form S-3 covering the Registrable Securities and other securities so requested to be registered as soon as practicable promptly after receipt of the request or requests of the S-3 Initiating Holders. All expenses incurred in connection with a registration requested pursuant to Section 1.2, including (without limitation) all registration, filing, qualification, printer and accounting fees shall be borne by the Company. The Company shall not be required to pay any underwriters' or brokers' fees, discounts or commissions relating to the Registrable Securities, or the fees or expenses of separate counsel to the selling Holders.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive at any time after the expiration of the Lock-Up from the Holders of Investor, so long as the Investor and its Affiliates hold at least 5,000,000 Registrable Securities (for purposes 25% of this Section 1.4the Shares held by the Investor and its Affiliates as of the date hereof, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and or any related qualification or compliance similar short-form registration statement with respect to all or a part of the Registrable Securities owned by such Holder the Holders, and provided the Company is then eligible to use Form S-3 or Holderssimilar short-form registration statement, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders holding Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, (i) file such registration statement, if the Company is then eligible to use Form S-3 or any similar short-form registration statement and use its commercially reasonable best efforts to have such registration statement declared effective, (ii) promptly respond to all SEC comments related to such registration statement but in any event within two weeks of the receipt thereof, (iii) obtain all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such the Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request timely given within fifteen (15) days after receipt of such the written notice from the CompanyCompany given pursuant to Section 2.3(a), including causing such registration statement to be declared effective by the SEC as soon as practicable, and (iv) maintain the effectiveness of the registration statement effected pursuant to this Section 2.3 at all times, subject only to the limitations on effectiveness set forth in Section 2.5; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:
2.3: (i) prior to the first anniversary date of the Closing Date (as defined in the Stock Purchase Agreement); (ii) if Form S-3 is not available for such offering by the Holders;
; (iiiii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an anticipated aggregate offering price to the public (net of any underwriters’ discounts or commissions) of less than three million dollars ($3,000,000;
); or (iiiiv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith and reasonable judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such Form S-3 registration statement to be effected at such timetime (but excluding any detriment to the Company and its shareholders solely as a result of its effect on the share price), in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating HoldersHolders or the under this Section 2.3; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) 12 month period and provided further that the Company shall not register any securities for the account of itself period; or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if after the Company has, within the twelve (12) month period preceding the date of such request, already has effected one (1) registration two registrations on Form S-3 pursuant to this Section 1.4;
(v) 2.3 and such registrations have been declared effective. Notwithstanding the foregoing, any expenses 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement connection with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated or attempted registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveshall be Registration Expenses.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as reasonably practicable after receipt of the request or requests of the Holders. Registrations effected pursuant to this Section 2.3 shall not be counted as a demand for registration or registrations effected pursuant to Sections 2.1 or 2.2, respectively.
(d) The Company shall not grant to any other Person the right to request the Company to register any shares of Common Stock in a registration on Form S-3 Initiating Holdersor similar short-form registration statement unless such rights are consistent with the provisions hereof, except in the case of a registration statement on Form S-3 or similar short-form registration statement filed to register any shares of Common Stock issued in connection with a Special Registration or in connection with an offering excluded from a Qualified Equity Offering.
(e) It is understood and agreed that as of the date hereof, the Company is ineligible to use Form S-3 and this Section 2.3 shall not apply unless and until the Company becomes eligible to use Form S-3. The Company will use its reasonable best efforts to become eligible to use Form S-3 as soon as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Seacoast Banking Corp of Florida)
Form S-3 Registration. After (a) Subject to the Initial Offeringconditions of this Section 1.12, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case if the Company shall receive from (i) the Holders of a majority of the Series D Registrable Securities (the “Series D Majority Holders”) (a “Series D Registration) or (ii) the Holders of at least 5,000,000 thirty percent (30%) of the Registrable Securities (for purposes of this Section 1.4, the a “S-3 Initiating HoldersHolder Registration”) then outstanding a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersHolder(s), then the Company shall:
shall (a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
Holders and (b) use all its commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Holder joining in such request as are specified in a written request given within fifteen (15) calendar days of the date the Company’s notice referred to in clause (a) of this sentence is given.
(b) If the Holders (or the Series D Majority Holders, as applicable) requesting registration pursuant to this Section 1.12 intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as part of their request made pursuant to this Section 1.12 and the Company shall include such information in the written notice referred to in clause (a) of Section 1.12(a). The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Holders requesting registration; provided, however, with respect to a Series D Registration, the underwriter will be selected by the Series D Majority Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include his Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 1.4(e)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 1.12, if the underwriter advises the Company and the Holders requesting registration in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated among all Holders thereof, including the Holders requesting registration, in proportion (as nearly as practicable) to the amount of Registrable Securities requested by each such Holder to be included in such underwriting. For purposes of the preceding concerning apportionment, for any selling stockholder which is a Holder of Registrable Securities and which is a partnership, limited liability company or corporation, the partners (or retired partners), members (or retired members) and stockholders of such selling stockholder, or the estates and family members of any such partners (or retired partners), members (or retired members) or stockholders and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling stockholder” and any pro rata reduction with respect to such “selling stockholder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling stockholder” as defined in this sentence. Notwithstanding the forgoing, with respect to a Series D Registration, if the aggregate proceeds which TCV has received from all prior sales of, and other distributions of assets with respect to, its Registrable Securities are less than the aggregate purchase price paid by TCV to the Company for all of the shares of Series D Preferred Stock acquired by TCV pursuant to a Purchase Agreement (the “Aggregate TCV Purchase Price”), then the number of shares of Series D Registrable Securities held by the Series D Holders and to be included in such Series D Registration shall not be reduced unless all other securities (including, without limitation, those to be sold by other Holders) are first excluded from the Series D Registration to the extent necessary to provide proceeds to TCV from sales of its Registrable Securities in such Series D Registration such that the proceeds from such sale and all prior sales by TCV of its Registrable Securities shall equal the Aggregate TCV Purchase Price.
(c) Notwithstanding the foregoing, if the Company shall furnish to the Holder(s) requesting a registration pursuant to this Section 1.12, a certificate signed by the Company’s President stating that in the good faith judgment of the Company’s Board of Directors, such registration would be seriously detrimental to the Company and its stockholders and that it is, therefore, essential to defer taking action with respect to such registration, the Company shall have the right to defer taking action with respect to such filing for a period of not more than one hundred twenty (120) calendar days after receipt the date the request of such written notice from the Company, Holder(s) requesting a registration pursuant to this Section 1.12 is given; provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period and the Company shall not register any securities for its own account or for the account of any other stockholder during such 120-day period (other than in a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities which are also being registered) unless such registration is already in process.
(d) In addition, the Company shall not be obligated to effect effect, or to take any such registrationaction to effect, qualification or compliance, any registration pursuant to this Section 1.41.12:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ underwriting discounts or and commissions) of less than $3,000,0005,000,000 (or in the case of a Series D Registration, of less than $10,000,000);
(iii) if the Company shall furnish with respect to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyHolder Registrations, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 for the Holders pursuant to this Section 1.41.12 and such registration has been declared or ordered effective;
(iv) with respect to Series D Registrations, if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) Series D Registration pursuant to this Section 1.12 and such registration has been declared or ordered effective;
(v) with respect to Holder Registrations, after the Company has effected two (2) registrations pursuant to this Section 1.12 and such registrations have been declared or ordered effective;
(vi) during the period starting with the date sixty (60) calendar days prior to the Company’s good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) calendar days after the effective date of, any registration statement pertaining to a public offering of securities for the Company’s account; provided that the Company is actively employing its commercially reasonable efforts to cause such registration statement to be effective; or
(vii) 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;compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act.
(vie) The Series D Majority Holders agree to withdraw their request for a Series D Registration if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of Company subsequently files a registration statement with pertaining to a public offering of securities for the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days Company’s account prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided time that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become Series D Registration has been declared or ordered effective.
(cf) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as All expenses incurred in connection with a part of their request made registration requested pursuant to this Section 1.4 1.12 (other than underwriting discounts and commissions and fees and disbursements of counsel for the Holders), including (without limitation) all registration, filing, qualification, printer’s fees, accounting fees and fees and disbursements of counsel for the Company, shall be borne by the Company; provided, however, that the Company shall include such information in not be required to pay for any expenses of any registration proceeding begun pursuant to this Section 1.12 if the written notice referred to in Section 1.4(a). The provisions registration request is subsequently withdrawn at the request of Section 1.2(bthe Holders of at least seventy percent (70%) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested (or the Series D Majority Holders with respect to a Series D Registration) to be registered as soon as practicable after receipt (in which case all participating Holders shall bear such expenses) unless the Holders of at least seventy percent (70%) of the request Registrable Securities (or requests the Series D Majority Holders with respect to a Series D Registration) agree to forfeit their right to one registration pursuant to this Section 1.12; provided further, however, that if at the time of such withdrawal, the Holders (or the Series D Majority Holders with respect to a Series D Registration) have learned of a material adverse change in the condition, business, or prospects of the S-3 Initiating HoldersCompany from that known to the Holders (or the Series D Majority Holders with respect to a Series D Registration) at the time of their request and have withdrawn the request with reasonable promptness following disclosure by the Company of such material adverse change, then the Holders (or the Series D Majority Holders with respect to a Series D Registration) shall not be required to pay any of such expenses and shall not forfeit their right to one registration pursuant to this Section 1.12; provided further, however that, with respect to a Series D Registration, if such withdrawal is required pursuant to Section 1.12(e), then such Series D Majority Holders shall not be required to pay any of such expenses and shall not forfeit its right to one registration pursuant to this Section 1.12. Registrations effected pursuant to this Section 1.12 shall not be counted as demands for registration or registrations effected pursuant to Section 1.2 or 1.3, respectively.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect effects a registration on Form S-3 or any equivalent form and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) 4.1 promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) 4.2 use all commercially reasonable best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified who have notified the Company in a written request given within fifteen twenty (1520) days after receipt of such written notice from the Company, provided, however, that the Company of their intention to join such request (”Form S-3 Joining Holders”).
4.3 The Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4section 4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if prior to the Holders, together with date which is the holders of any other securities nine month anniversary of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to Closing of the public (net of any underwriters’ discounts or commissions) of less than $3,000,000Purchase Agreement;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(viiiv) during the period starting with the date thirty forty five (3045) days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date ninety (90) days three months immediately following the effective date of of, a Company-initiated registration subject (other than a registration relating solely to Section 1.3 abovethe sale of securities to participants in a Company stock plan, a registration relating to a corporate reorganization or other transaction under Rule 145 of the Act), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.;
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) 4.4 Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 4 shall not be counted as registration effected pursuant to Section 2.
Appears in 1 contract
Sources: Investors' Rights Agreement (Pluristem Life Systems Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from any --------------------- holder or holders of ten percent (10%) or more of the Holders Registrable Securities having an aggregate fair market value of at least 5,000,000 Registrable Securities (for purposes $500,000 on the date of this Section 1.4, the “S-3 Initiating Holders”) request a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement not involving an underwriting and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder holder or Holdersholders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification qualifications or compliance, to all other Holdersholders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances compliance as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ holder's or holders' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders holder or holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.3:
(i) if Form S-3 is not available for such offering by the Holders;such holders; or
(ii) if the Holders, together with the within thirty (30) days of receipt of a written request from such holder or holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company2.3, it would be seriously detrimental to the Company and its stockholders for gives notice to such registration statement to be effected at such time, in which event holder or holders that the Company shall have the right has already taken active steps to defer such filing for make a period of not more than public offering within ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;receipt; or
(viii) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(viiiv) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that if the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the has effected two or more registrations on Form S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information 2.3 in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).immediately preceding 365 days; and
(dc) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holderssuch holders. Registrations effected pursuant to this Section 2.3 shall not be counted as demands for registration or registrations effected pursuant to Section 2.1.
Appears in 1 contract
Sources: Registration Rights Agreement (Rf Monolithics Inc /De/)
Form S-3 Registration. After the Initial OfferingIf, at any time when it is eligible to use a Form S-3 registration statement, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) receives a written request or requests from the Initiating Holders that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, then the Company shall:
(a) promptly Promptly give written notice of the proposed registration, and any related qualification or compliance, requested registration to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as As soon as reasonably practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given writing within fifteen (15) 20 days after receipt of such the written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.41.3:
(i) if Form S-3 is not available for such offering by the such Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at having an anticipated aggregate offering price to the public (net of any underwriters’ underwriting discounts or and commissions) of less than $3,000,00010,000,000;
(iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 1.3 a certificate signed by the Company’s Chief Executive Officer president or Chairman chief executive officer of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously materially detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such timetime because such registration (A) would have a material adverse effect on any acquisition, merger, consolidation, tender offer or any other similar material transaction involving the Company; (B) would require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (C) would render the Company unable to comply with requirements under the Securities Act or Exchange Act, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement no more than once during any 12-month period for a period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating HoldersHolders under this Section 1.3; provided, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)an Excluded Registration;
(iv) if the Company has, within the twelve (12) -month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective1.3; or
(viiv) during the period starting with the date thirty (30) 60 days prior to the Company’s good faith estimate of the date of the filing of of, and ending on a date ninety (90) 180 days following after the effective date of of, a Company-initiated registration subject to Section 1.3 above1.4; provided, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 1.3, and the Company shall include such information in the written notice referred to in Section 1.4(a1.3(a). The provisions of Section 1.2(b1.2(d) shall be applicable to such request (with the substitution of Section 1.4 1.3 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as reasonably practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.3 shall not be counted as requests for registrations effected pursuant to Section 1.2.
(e) At all times following the Company’s IPO, the Company shall use its commercially reasonable efforts to become and remain eligible to use a Form S-3 registration statement.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 more than fifteen percent (15%) of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) at a time when the Company is eligible to register securities on Form S-3 or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, use its best efforts to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than one million dollars ($3,000,0001,000,000);
(iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.the
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(ivii) if Form S-3 is not available for such offering by the Holders;
(iiviii) if the Holders, together with the holders of any other securities of the Company entitled Holders requesting registration on Form S-3 and those Holders requesting registration pursuant to inclusion in Section 2.3 on such registration, Form S-3 propose to sell Registrable Securities and such other securities (if any) at having an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0005,000,000;
(iiiix) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4(a), (b) and/or (d), the Company gives notice to such Holder or Holders of the Company’s intention to effect a registration of its securities within ninety (90) days, other than pursuant to a Special Registration Statement;
(x) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, Holder or Holders under this Section 2.4; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period period, and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating pursuant to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registeredSpecial Registration Statement);
(ivxi) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.42.4(a) (b) and/or (c);
(vxii) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”excluding Founders) a written request or requests that the Company effect a registration on Form S-3 S-3, including a request that the Company effect a registration pursuant to Rule 415 under the Securities Act, provided that any such registration shall terminate after six months or the sale of all Registrable Securities registered thereunder, whichever first occurs, and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders (including Founders); and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution distridution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
1.12: (i1) if Form S-3 is not available for such offering by the Holders;
; (ii2) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,000;
1,000,000; (iii3) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it such registration would reasonably be seriously detrimental expected to have a material adverse effect on any proposal or plan by the Company and its stockholders for such registration statement (A) to be effected at such timeengage in any acquisition of assets (other than in the ordinary course of business) or any stock purchase, merger, consolidation, tender offer, reorganization or similar transaction, or (B) to execute transactions of private or publicly traded asset-backed issuances or commercial paper offerings, in which event the Company shall have the right to defer such the filing of the Form S-3 registration for a period of not more than ninety (90) ten 90 days after receipt of the request of the S-3 Initiating HoldersHolder of Holders under the Section 1.12 provided however, provided that such the company shall not utilize this right shall be exercised by the Company not more than once in any twelve twelve-month period; (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv4) if the Company has, within the twelve (12) six-month period preceding the date of such request, already effected one (1) a registration on of Form S-3 for the Holders pursuant to this Section 1.4;
1.12; (v5) in any particular jurisdiction in on which the Company would be required to qualify Qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance;
; or (vi6) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of Company has filed a registration statement with within the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectivepast 180 days.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the Holders. All expenses incurred in connection with registrations requested by RFC pursuant to this Section 1.12 or in connection with two registrations requested by Holders other than RFC pursuant to this Section 1.12, including (without limitation) all registration, filing, qualification, printer's and accounting fees and the reasonable fees and disbursements of one designated counsel for the selling Holder or Holders and counsel for the Company, but excluding any underwriters' discounts or commissions associated with Registrable Securities, shall be borne by the Company. All expenses incurred in connection with any additional registrations requested by Holders other than RFC pursuant to this Section 1.12 following the first two (2) such registrations, including (without limitation) all registration, filing, qualification, printer's and accounting fees and the reasonable fees and disbursements of one designated counsel for the selling Holder or Holders and counsel for the Company, but excluding any underwriters' discounts or commissions associated with Registrable Securities, shall be borne pro rata by the Holder or Holders participating in the Form S-3 Initiating HoldersRegistration; provided, however, that in the event that RFC shall participate in such Form S-3 Registration, any expenses that RFC would otherwise be required to bear pursuant to this subsection 1.12(c) shall be borne by the Company. Registrations effected pursuant to this Section 1.12 shall not be counted as demands for registration or registrations effected pursuant to Sections 1.2 or 1.3, respectively.
Appears in 1 contract
Sources: Investors' Rights Agreement (Accredited Home Lenders Holding Co)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the --------------------- Majority Series A/B Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4or the Majority Priority Preferred Holders, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 under the Securities Act (or any similar successor form) and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holdersholders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holdersholders of securities of the Company; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, use its best efforts to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities securities of any other holder in the group of All Preferred Holders of securities joining in such request as are is specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, -------- ------- that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:
9.10: (i) if the Company is not qualified as a registrant entitled to use Form S-3 is not available for such offering by (or the Holders;
applicable successor form); (ii) if the HoldersHolders of Series A Preferred Stock and Series B Preferred Stock of the Company and the holders of the Priority Preferred Shares, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than One Million Dollars ($3,000,000;
1,000,000); or (iii) if the Company shall furnish to all All Preferred Holders requesting a registration statement pursuant that requested to this Section 1.4 be included in such registration, a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Majority Series A/B Holders or the Majority Priority Preferred Holders, provided as the case may be, under this Section 9.10; provided, -------- however, that such right shall be exercised by the Company shall not utilize this right more than ------- once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a)period. The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file and use its best efforts to bring effective a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request of either the Majority Series A/B Holders or requests of the S-3 Initiating Majority Priority Preferred Holders.
Appears in 1 contract
Sources: Shareholder Agreement (Broadview Networks Holdings Inc)
Form S-3 Registration. After the Initial Offering, (a) If the Company shall use receive, at any time after it shall have consummated the first underwritten public offering of its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4Common Stock, the “S-3 Initiating Holders”) a written request or requests from the holders of Restricted Securities constituting (i) at least 10% of the total Restricted Securities outstanding at such time (treating for the purpose of such computation the holders of Preferred Shares as the holders of the Conversion Shares then issuable upon conversion of such Preferred Shares), or (ii) who will seek registration of Registered Securities with a gross market value of at least $1,000,000 (calculated by multiplying the number of Restricted Securities sought to be sold by the last sale or closing price on the date preceding the request or requests) that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Restricted Securities owned by such Holder holder or Holdersholders, the Company shallwill, if eligible to do so:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holdersholders of Restricted Securities from whom notice has not been received and to holders of Founders Stock; and
(bii) use all commercially reasonable efforts to effect, as soon as practicable, use its best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and all such qualifications appropriate compliance with applicable regulations issued under the Securities Act and compliances any other government requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ holder's or holders' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders holder or holders thereof joining in such request as are specified in a written request given within fifteen thirty (1530) days after receipt of such written notice from the Company, provided, however, provided that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders number of any other securities shares of the Company entitled to inclusion in such registration, propose to sell -------- Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a such registration statement covering may be reduced (pro rata among the sale holders requesting registration thereof --- ---- based upon the number of shares requested to be registered) if and to the extent that the managing underwriter (if the method of disposition shall be an underwritten public offering) shall be of the opinion that the inclusion of all Registrable Securities requested to be included in such offering would adversely affect the marketing of the Registrable Securities, or a registration Securities to be sold in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a)offering. The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holdersholders of the Registrable Securities.
(b) The Company shall be obligated to register the Registrable Securities pursuant to Section 5(a) not more than three times per calendar year. Registrations effected pursuant to this Section 5 shall not be counted as requests for registration effected pursuant to Section 4.
Appears in 1 contract
Form S-3 Registration. (a) After the its Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from any of the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a1) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b2) use all commercially reasonable efforts to effect, as soon as reasonably practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company.
(b) Holders of Registrable Securities requesting a registration on Form S-3 or any comparable or successor form or forms pursuant to this Section 1.4 shall have the right to elect for any such registration to be made for an offering to be made on a continuous or delayed basis pursuant to Rule 415 covering the Registrable Securities (a “Shelf Registration Statement”), providedin which case the registration statement filed by the Company in connection with such request shall be a Shelf Registration Statement. The Company shall use its best efforts to keep the Shelf Registration Statement continuously effective in order to permit the Prospectus forming a part thereof to be usable by the Holders for a period of 12 months plus the period of time, howeverif any, that during which use of such Shelf Registration Statement has been suspended pursuant to Section 1.4(c)(3) or, if earlier, until the distribution contemplated in the Shelf Registration Statement has been completed.
(c) The Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i1) if Form S-3 is not available for use by the Company with respect to such offering by the Holders;
(ii2) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000500,000;
(iii3) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously materially detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected (or, in the case of a Shelf Registration Statement (as defined above), either effected or used) at such time, in which event the Company shall have the right to defer the filing of the Form S-3 registration statement (or, in the case of an already effective Shelf Registration Statement, direct the Holders to suspend sales pursuant to such filing already effective Shelf Registration Statement) for a period of not more than ninety sixty (9060) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.4 (or, provided that in the case of an already effective Shelf Registration Statement, after such right shall be exercised determination by the Board of Directors of the Company), provided, however, that the Company shall not utilize this right more than once in any twelve (12) month period and provided further provided, further, that the Company shall not register any securities for the account of itself or any other stockholder during such ninety sixty (9060) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, plan or a registration relating solely to a corporate reorganization or transaction an acquisition under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv4) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.4;; or
(v5) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(cd) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable (as relevant) to such request (with the substitution of Section 1.4 for references to Section 1.2). For the avoidance of doubt, in the case of a Shelf Registration Statement, any of the Holders may make such a request for some or all of the registered Registrable Securities at any time that the Shelf Registration Statement is effective and the Company shall amend or supplement the Shelf Registration Statement as may be necessary in order to enable such underwritten distribution.
(de) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of any of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.4 shall not be counted as requests for registration effected pursuant to Section 1.2. Except as otherwise provided herein, there shall be no limit on the number of times the Holders may request registration of Registrable Securities under this Section 1.4.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than five million dollars ($3,000,0005,000,000);
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.4;2.4; or
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 1 contract
Sources: Investor Rights Agreement (Calithera Biosciences, Inc.)
Form S-3 Registration. After Any Holder (an “Initiating Form S-3 Holder”) may request, at any time, that the Initial OfferingCompany file a Registration Statement under the Securities Act on Form S-3 (or similar or successor form) covering the sale or other distribution of all or any portion of the Registrable Securities held by such Initiating Form S-3 Holder pursuant to Rule 415 under the Securities Act (“Form S-3 Demand”) if (i) the reasonably anticipated aggregate gross proceeds would equal or exceed $5,000,000, (ii) the Company is a registrant qualified to use Form S-3 (or any similar or successor form) to register such Registrable Securities and (iii) the plan of distribution of the Registrable Securities is other than pursuant to an underwritten public offering. If such conditions are met, the Company shall use its commercially reasonable best efforts to qualify for registration register under the Securities Act on Form S-3 (or any comparable similar or successor form or formsform) at the earliest practicable date, for sale in accordance with the method of disposition specified in the Form S-3 Demand, the number of Registrable Securities specified in such Form S-3 Demand. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) connection with a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersDemand, the Company shall:
(a) promptly give written notice of agrees to include in the proposed registration, and prospectus included in any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicableRegistration Statement on Form S-3, such registration material describing the Company and all such qualifications and compliances as may be so requested and as would permit or intended to facilitate the sale and distribution of all securities being so registered as is reasonably requested for inclusion therein by the Initiating Form S-3 Holders, whether or such portion not the rules applicable to preparation of Form S-3 require the inclusion of such Holders’ Registrable Securities as are specified in such requestinformation. Notwithstanding the foregoing, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all the Initiating Form S-3 Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman and Chief Financial Officer of the Board of Directors Company stating that in the good faith judgment opinion of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timea Valid Business Reason exists, in which event the Company shall have the right to delay or defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Form S-3 Initiating HoldersDemand; provided, provided however, that such right to delay or defer a Form S-3 Demand shall be exercised by the Company not more than once in any twelve (12) month period period, the Company shall only have the right to delay a Form S-3 Demand so long as such Valid Business Reason exists, and provided further during such time the Company may not file a Registration Statement for securities to be issued and sold for its own account or for that of any other Holders. Form S-3 Demands will not be deemed to be Demand Requests as described in Section 1.2 hereof and Holders shall have the right to request an unlimited number of Form S-3 Demands. Notwithstanding the foregoing, the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other be obligated to file more than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration Registration Statement on Form S-3 pursuant to this Section 1.4;
(v) 1.4 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;
given six (vi6) if the Company, within thirty month period. Investor’s Rights Agreement (30ITEK) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.v4
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case (a) If the Company shall receive from the Holders any holder or holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4Restricted Stock, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities Restricted Stock owned by such Holder holder or Holdersholders, the Company shallwill:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holdersholders of Restricted Stock and Investor Shares; and
(bii) use all commercially reasonable efforts to effect, as soon as practicable, use its best efforts to effect such registration (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and all such qualifications appropriate compliance with applicable regulations issued under the Securities Act and compliances any other government requirements or regulations) as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities holder's or holders' Restricted Stock or Investor Shares, as the case may be, as are specified in such request, together with all or such portion of the Registrable Securities Restricted Stock or Investor Shares of any other Holders holder or holders joining in such request as are specified in a written request given within fifteen twenty (1520) days after receipt of such written notice from the CompanyCompany PROVIDED, provided, howeverHOWEVER, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:
5 (iA) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) 180-day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securitiesperiod, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(ivB) if the Company hasis not entitled to use Form S-3; and PROVIDED, within FURTHER, HOWEVER, that the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(v) in any particular jurisdiction in only securities which the Company would shall be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination register pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) hereto shall be applicable to such request (with the substitution shares of Section 1.4 for references to Section 1.2).
(d) COMMON STOCK. Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities Restricted Stock and other securities Investor Shares so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holdersholders of the Restricted Stock and Investor Shares, as the case may be.
(b) Registrations effected pursuant to this Section 5 shall not be counted as requests for registration effected pursuant to Section 4.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Board of Directors of the Company will be entitled to postpone the filing period (or suspend the effectiveness or use) of any registration statement relating to the Restricted Stock or Investor Shares, as the case may be, pursuant to this Section 5 for a reasonable period of time not in excess of 90 calendar days, if the Board determines, in its reasonable business judgment, that such registration and offering could materially interfere with BONA FIDE financing plans of the Company or would require disclosure of information, the premature disclosure of which could, in the Board's reasonable business judgment, materially and adversely affect the Company. If the Board postpones the filing (or suspends the effectiveness or use) of a registration statement pursuant to this Section 5, it will promptly notify, in writing, the holders of Restricted Stock or Investor Shares, as the case may be, that requested such registration when the events or circumstances permitting such postponement have ended.
Appears in 1 contract
Sources: Registration Rights Agreement (United Surgical Partners International Inc)
Form S-3 Registration. After (a) If at any time after the Initial OfferingRestricted Period or the waiver thereof, the Company shall qualifies to use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case for the registration of the resale of its Common Stock on behalf of a selling stockholder and the Company shall receive receives a request from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests Investor that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holdersthe Investor, then the Company shall:
shall (ai) promptly give written notice of the proposed registrationas soon as practicable, and in any related qualification or complianceevent within [***] after the date such request is given by the Investor, to all other Holders; and
file a registration statement on Form S-3 under the Securities Act and (bii) use all its commercially reasonable efforts to effect, as soon as practicableat the earliest practicable date, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution disposition (in accordance with the intended methods of disposition) of all or such portion of such Holders’ the Investor’s Registrable Securities as are specified in such request, together with all or such portion of subject to the Registrable Securities of any other Holders joining limitations in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:2.3(b).
(ib) if Form S-3 is not available for such offering by Notwithstanding the Holders;
(ii) if the Holdersforegoing obligations, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish furnishes to all Holders requesting a registration statement pursuant to this Section 1.4 the Investor a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors chief executive officer stating that in the good faith judgment of the Company’s Board of Directors of the Company, it would be seriously materially detrimental to the Company and its stockholders for such the applicable registration statement to be effected become effective at such timetime because such action would (i) materially interfere with a significant acquisition, in which event corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer the filing of such filing registration statement for a period of not more than ninety (90) days [***] after receipt of the request of the S-3 Initiating HoldersInvestor is given; provided, provided however, that such right shall be exercised by the Company may not invoke this right more than once [***] in any twelve (12) month period [***] period; and provided further that the Company shall not register any securities for the its own account or that of itself or any other stockholder during such ninety (90) day [***] period (other than a pursuant to an Excluded Registration.
(c) The Company shall not be obligated to effect any registration relating solely pursuant to this Section 2.3 (i) if Form S-3 is not then available for such offering by the Investor; (ii) if the Investor proposes to sell Registrable Securities at an aggregate price to the sale public (net of securities Selling Expenses) of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
less than [***]; (iviii) if the Company has, within the twelve (12) month [***] period preceding the date of such request, already effected one (1) registration on Form S-3 [***] registrations for the Investor pursuant to this Section 1.4;2.3 and/or Section 2.1.
(vd) in any particular jurisdiction in which the Company would A registration shall not be required to qualify to do business or to execute a general consent to service counted as “effected” for purposes of process in effecting such registration, qualification or compliance;
this Section 2.3 (vii) if the Companyapplicable registration statement is withdrawn without becoming effective; provided, within thirty (30) days of receipt of however, that if such withdrawal was at the request of such S-3 Initiating Holders, gives notice of the Investor and the Investor elects not to pay the registration expenses therefor and forfeits its bona fide intention right to effect the filing of a [***] demand registration statement pursuant to Section 2.8, such withdrawn registration statement shall be counted as “effected” for purposes of this Section 2.3 and Section 2.1; (ii) if the registration statement does not remain effective in compliance with the SEC within ninety (90) days provisions of receipt the Securities Act and the laws of such request (any state or other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior jurisdiction applicable to the Company’s good faith estimate disposition of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request such registration statement for the period required pursuant to Section 2.6(a); (iii) if, after it has become effective, such registration statement is subject to any stop order, injunction or other order or requirement of the SEC or other governmental or regulatory agency or court for any reason other than a violation of applicable law solely by means of an underwriting, they shall so advise the Investor and has not thereafter become effective; or (iv) if the Company as a part does not include in the applicable registration statement all Registrable Securities held by the Investor that are required by the terms of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested 2.3 to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holdersincluded in such registration statement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cara Therapeutics, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request from a Holder or requests Holders of Registrable Stock then outstanding that the Company effect a registration on Form S-3 S-3, or any successor form thereto under the Securities Act, and any related qualification or compliance with respect to all or a part of the such Registrable Securities Stock owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Stock; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities Stock as are specified in such request, together with all or such portion of the Registrable Securities Stock of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt the mailing of such written notice from the Company, Company specified in Section 3(a); provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
3, if (i) the Company has already effected three (3) registrations pursuant to this Section 3 during such calendar year; (ii) the Company has effected a registration pursuant to this Agreement within 90 days (or 180 days if such registration was an initial public offering) of the date of the request pursuant to this Section 3; (iii) Form S-3 is not available to the Company for such offering by the Holders;
; (iiiv) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, Holders propose to sell Registrable Securities and such other securities (if any) at an Stock, the RUBICON TECHNOLOGY, INC. -3- FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT anticipated aggregate offering price to the public (of which, net of any underwriters’ underwriting discounts or and commissions) of , is less than $3,000,000;
500,000; or (iiiv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 Registration Statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 3; provided, provided however, that such right shall be exercised by the Company may not utilize the right in item (v) above more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveperiod.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made Registrations effected pursuant to this Section 1.4 and the Company 3 shall include such information in the written notice referred not be counted as demands for registration or registrations effected pursuant to in Section 1.4(a). The provisions Sections 1 or 2 of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2)this Agreement.
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Rubicon Technology, Inc.)
Form S-3 Registration. After In the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company Parent shall receive from the Holders of at least 5,000,000 --------------------- Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company Parent effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company Parent shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable best efforts to effect, as soon expeditiously as reasonably practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Holder's Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen twenty (1520) days after receipt of such written notice from the Company, Parent; provided, however, that the Company Parent shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:5: ---------
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company Parent entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective500,000; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company Parent shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon expeditiously as reasonably practicable after receipt of the request or requests of the S-3 Initiating Holders.. Registrations effected pursuant to this Section 5 shall not be counted as requests for registration effected pursuant to --------- Section 3. ---------
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 (or any comparable or successor form or forms) and any related reasonable qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(bii) use all commercially reasonable efforts to effect, as soon as practicable, use its best efforts to effect such registration and all such reasonable qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
5(c): (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s President or Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 60 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 5(c); provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve twelve-month period; or (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(viii) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(diii) Subject to the foregoing, the Company shall file a registration statement on Form S-3 (or successor form) covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
(iv) Without limiting the rights of the Holders pursuant to this Section 5(c), the Company acknowledges and agrees that, if requested in writing by any Holder or Holders of Registrable Securities then outstanding, the Company shall effect the Form S-3 (or successor form) registration under the Securities Act pursuant to this Section 5(c) for an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor provision then in force) under the Securities Act (a "Shelf Registration") or maintain the effectiveness of a registration statement to effect a Shelf Registration at the request of the Holders or Holders pursuant to this Section 5(c).
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) Velston a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part (but not less than 20%) of the Registrable Securities owned by such Holder or HoldersVelston, the Company shallwill:
(aA) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Velston’s Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
3(e): (i) if Form S-3 is not available for such offering by the Holders;
Velston; (ii) if the HoldersVelston, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
; (iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 Velston a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more greater than ninety (90) 90 days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction Velston under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registeredthis Section 3(e);
; (iv) if the Company has, within the twelve six (126) month period preceding the date of such request, effected a registration for Velston pursuant to Section 3(a) or this Section 3(e), (v) if the Company has already effected one (1) registration two registrations on Form S-3 for Velston pursuant to this Section 1.4;
3(e); or (viv) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating HoldersVelston. Registrations effected pursuant to this Section 3(e) shall not be counted as demands for registration or registrations effected pursuant to Section 3(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Ness Technologies Inc)
Form S-3 Registration. After (a) Subject to the Initial Offeringconditions of this Section 2.2, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case if the Company shall receive a written request from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part majority of the Registrable Securities owned by such Holder or then outstanding (the "Initiating Holders") that the Company file a registration statement under the Securities Act on Form S-3, then the Company shall:
, within fifteen (a15) promptly days of the receipt thereof, give written notice of the proposed registrationsuch request to all Holders, and any related qualification or compliancesubject to the limitations of this Section 2.2, to all other Holders; and
(b) use all commercially reasonable its best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, providedthey shall so advise the Company as a part of their request made pursuant to this Section 2.2 and the Company shall include such information in the written notice referred to in Section 2.2(a). In such event, howeverthe right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.2, if the underwriter advises the Company that marketing factors require a limitation of the number of securities to be underwritten (including Registrable Securities) then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities on a PRO RATA basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. If the Holders are unable to register and sell at least seventy-five percent (75%) of the Registrable Securities requested by them to be registered because of such underwriter's cutback, the such registration statement shall be withdrawn and the expenses of such withdrawn registration statement shall be borne by the Company in accordance with Section 2.4 hereof, and such registration shall not constitute a registration requested under this Section 2.2.
(c) The Company shall not be obligated required to effect any such registration, qualification or compliance, a registration pursuant to this Section 1.42.2:
(i) prior to the first anniversary of the registration statement pertaining to the Initial Offering;
(ii) if Form S-3 (or any successor or similar form) is not available for such offering by the Holders; provided however, that the Company shall use all commercially reasonable efforts to become and remain eligible to use Form S-3 (or any successor or similar form);
(iiiii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than four million dollars ($3,000,0004,000,000); provided, however, that in the event the aggregate price to the public is less than four million dollars ($4,000,000) due to the underwriter's cutback provided for in Section 2.2(b) and the Company elects not to effect such registration, then such registration shall not be counted as a registration requested under this Section 2.2;
(iiiiv) 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;
(v) after the Company has effected one (1) registration pursuant to this Section 2.2, and such registration has been declared or ordered effective; provided, however, that if such registration is underwritten and Registrable Securities are not sold pursuant to such registration, such registration shall not be counted as a registration requested under this Section 2.2
(vi) if within fifteen (15) days of receipt of a written request from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company's intention to make a public offering within ninety (90) days; or
(vii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 2.2, a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided ; PROVIDED that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveperiod.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. (a) In case the Company shall receive from any Holder or Holders who hold the Holders of at least 5,000,000 Company's Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(bii) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen thirty (1530) days after receipt of such written notice from the Company, provided, however, that the . The Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
1.4 if: (i1) if Form S-3 is not available for such offering by the Holders;
Company; (ii2) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,000;
2,500,000; (iii3) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors the Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to have a Material Adverse Effect on the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.4; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve 12 month period; (124) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, has already effected one (1) registration on Form S-3 for the Holders pursuant to this Section 1.4 within six months prior to the Company's receipt of the request of the Holder or Holders under this Section 1.4;
(v) . In addition, the Company will not be obligated to effect any such registration 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(cb) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a1.4(a)(i). The provisions In such event, the right of any Holder to include his Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Holders and such Holder) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 1.2(b)) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Holders. Notwithstanding any other provision of this Section 1.4, if the underwriter advises the Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included in the underwriting shall be applicable allocated among all Holders thereof in proportion (as nearly as practicable) to such request (with the substitution amount of Section 1.4 for references to Section 1.2)Registrable Securities of the Company owned by each Holder; provided, however, that the number of Registrable Securities shall not be reduced unless all other securities are excluded from the underwriting.
(dc) Subject to the foregoing, the Company shall file a registration statement on Form S-3 or any successor form thereof covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating HoldersHolders and use its best efforts to keep such registration statement effective until the Registrable Securities are sold or for six months, whichever comes first. Registrations effected pursuant to this Section 1.4 shall not be deemed to be demands for registration or registrations effected pursuant to Section 1.2 or 1.3, respectively.
Appears in 1 contract
Sources: Investor Rights Agreement (Leap Technology Inc / De)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests from any of the Holders of the Registrable Securities that the Company effect a registration on Form S-3 that registers a number of shares of Registrable Securities for each Holder so requesting equal to at least one percent (1%) of the outstanding Common Stock (or, with the consent of the Company, any number of shares of Registrable Securities less than such amount) and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersHolder, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 20 days after receipt effectiveness of such written notice from the Company, Company pursuant to Section 2.7; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:
1.11: (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an any aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
1,000,000; (iii) as provided in Section 1.4(a) or Section 1.4(d); or (iv) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by advise the Company’s Chief Executive Officer or Chairman of the Board of Directors stating Holder that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such 11 anticipates filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if by the Company has, for cash within the twelve (12) month period preceding the date 60 days after receipt of such request, already effected one (1) registration on Form S-3 any request of a Holder pursuant to this Section 1.4;
(v) in any particular jurisdiction 1.11, 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;
(vi) if event the Company, within thirty (30) 's obligations under this Section 1.11 shall be suspended until the earlier of 60 days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of following such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause without such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) having been filed or 90 days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause after such registration statement to become effectiveis declared effective by the SEC.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.11 shall not be counted as demands for registration effected pursuant to Section 1.2.
Appears in 1 contract
Sources: Investors' Rights Agreement (Waste Connections Inc/De)
Form S-3 Registration. After Subject to compliance with the Initial Offeringterms of the Lock-Up Agreements, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice within 90 days of the proposed registrationEffective Time (as defined in the Merger Agreement), and any related qualification or compliancefile one registration statement on Form S-3, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicablereasonably practicable thereafter, such registration and effect all such qualifications and compliances as may be so requested reasonably necessary and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, Securities; provided, however, that the Company shall not be obligated to file such registration statement, or effect any such registration, qualification or compliance, pursuant to this Section 1.4:
1.2: (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of unless and until the Company entitled has received the consents and the financial statements and other financial information required by the Act and the SEC to inclusion be included in such registration, propose to sell Registrable Securities registration statement from the independent certified public accountants of both the Company and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
Timm; (iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed ▇▇▇▇ed by the Company’s 's Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.2; provided, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further however, that the Company shall not register utilize this right more than twice in any securities for the account of itself 12 month period; or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;.
(vib) if All expenses incurred in connection with a registration effected pursuant to this Section 1.2, including (without limitation) all registration, filing, qualification, printer's and accounting fees (including fees and disbursements of counsel for the Company in its capacity as counsel to the Holders; solely in the event that Company counsel does not make itself available for this purpose, the Company will pay the reasonable fees and disbursements of one counsel for the Holders not to exceed $10,000) shall be borne by the Company. Notwithstanding the foregoing, within thirty (30) days the fees and expenses of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request any persons (other than the fees and expenses of counsel for the Holders as provided for above) retained by a registration effected solely to qualify Holder, the fees and expenses customarily reimbursed or paid by issuers or selling security holders on behalf of underwriters in underwritten offerings (in the case of an employee benefit plan or to effect a business combination pursuant to Rule 145underwritten offering), provided that and any discounts, commissions or broker's fees or fees of similar securities industry professionals and any transfer taxes relating to the distribution of the Registrable Securities by a Holder, will be payable by such Holder, and the Company is actively employing in good faith all commercially reasonable efforts will have no obligations to cause pay such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveamounts.
(c) If A majority in interest of the S-3 Initiating Holders shall have the right, by written notice to the Company on or before the expiration of the 30 day period following the Effective Time, to specify that all Holders intend to distribute dispose of the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made registration statement pursuant to this Section 1.4 1.2 pursuant to an underwritten offering. The institution or institutions that shall manage or lead the offering or placement shall be mutually and reasonably agreed to by a majority in interest of the Holders and the Company shall include such information in the written notice referred to in Section 1.4(a)Company. The provisions of Section 1.2(b) No Holder shall be applicable entitled to participate in an underwritten offering unless and until such request (Holder has entered into an underwriting or other agreement with the substitution of Section 1.4 such institution or institutions for references to Section 1.2).
(d) Subject to the foregoing, such offering in such customary form as the Company and such institution or institutions shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holdersdetermine.
Appears in 1 contract
Form S-3 Registration. After If and when the Initial OfferingCompany is eligible to effect a registration under the Securities Act on Form S-3 and the Company shall receive a written request there from any holder or holders of at least 10% of the Registrable Stock, then the Company shall promptly prepare and file a S-3 statement under the Securities Act (the "S-3 Statement") covering the Registrable Stock which is the subject of such request and shall use its best efforts to cause such S-3 Statement to become effective as expeditiously as possible. Upon the receipt of such request, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts holders of Registrable Stock and to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company all Other Shares which are entitled to inclusion registration rights that such S-3 registration is to be effected. The Company shall include in such registration, propose to sell S-3 Statement such Registrable Securities Stock and such other securities (if any) at an aggregate price shares of Other Shares for which it has received written requests to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed register such shares by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, holders thereof within thirty (30) days of receipt after the effectiveness of the request Company's written notice to such other holders, as well as Primary Shares, provided, however, that, in the case of an underwritten offering, if the managing underwriter advises the holders of Registrable Stock that the inclusion of all Registrable Stock, Primary Shares and/or Other Shares proposed to be included in such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement would interfere with the SEC within ninety successful marketing (90including pricing) days of receipt the Registrable Stock proposed to be included in such registration, then the number of such request (other than a registration effected solely shares of Registrable Stock, Primary Shares and/or Other Shares proposed to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing be included in good faith all commercially reasonable efforts to cause such registration statement should be included in the following order:
1. first, the shares of Registrable Stock requested to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing be included in good faith all commercially reasonable efforts to cause such registration statement (or, if necessary, such Registrable Stock pro rata among the holders thereof based upon the number of shares of Registrable Stock requested to become effective.be registered by each such holder);
(c) If 2. second, the S-3 Initiating Holders intend Other shares which are entitled to distribute registration rights; and
3. third, the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a)Primary Shares. The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to Notwithstanding the foregoing, the Company shall file a registration statement covering rights set forth in this Section 11(a) may, only be exercised once by the holders of the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating HoldersStock.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:
7.12: (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,000;
2,000,000; (iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, Company it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.defer
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Molecular Evolution Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 15% of the Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) then outstanding a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of giving such written notice from by the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:
1.12: (i1) if Form S-3 is not available for such offering by the Holders;
; (ii2) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
2,500,000; (iii3) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company's Board, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a one period of not more than ninety (90) 90 days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once Holder or Holders under this Section 1.12 in any twelve 12-month period; (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv4) if the Company has, within the twelve (12) month period preceding the date of such request, has already effected one (1) registration three registrations on Form S-3 for the Holders pursuant to this Section 1.4;
1.12; or (v5) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. All expenses incurred in connection with a registration requested pursuant to this Section 1.12, including (without limitation) all registration, filing, qualification, printer's and accounting fees and the reasonable fees and disbursements of one counsel for the selling Holder or Holders and counsel for the Company, shall be borne by the Company. Registrations effected pursuant to this Section 1.12 shall not be counted as demands for registration or Company registrations effected pursuant to Sections 1.2 or 1.3 hereof, respectively.
Appears in 1 contract
Form S-3 Registration. After (a) In the Initial Offering, event the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or receives from any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) Holder a written request or requests that the Company effect a registration on Form S-3 S-3, and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holderscompliance, the Company shall:
will within seven (a7) promptly days from receipt of any such request give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
, and include in such registration all Registrable Securities held by all such Holders, who wish to participate in such registration and provide the Company with written requests for inclusion therein within fifteen (b15) days after the receipt of the Company's notice. Thereupon, the Company shall use all commercially reasonable its best efforts to effect, as soon as practicable, effect such registration of the Registrable Securities held by the Holders, and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request.
(b) In addition, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect effect, or to take any such registrationaction to effect, any registration qualification or compliance, compliance pursuant to this Section 1.4:1.4(a):
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;
(vii) 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;
(viiii) during the period ending 90 days after the effective date of any registration statement pertaining to Ordinary Shares of the Company (or such shorter period if such shorter period is acceptable to the underwriters of such offering);
(iv) if such request does not cover shares representing a market value at the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt time of such request (other than equal to a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveminimum of $1,000,000; or
(viiv) during if Form S-3 is not available for such offering by the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. (a) In case the Company shall receive receives from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(bii) use all commercially reasonable efforts to effect, as soon as practicable, use all reasonable commercial efforts to effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 calendar days after receipt of such written notice from the Company.
(b) Notwithstanding anything herein to the contrary, provided, however, that the Company shall will not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.412:
(i) if If Form S-3 (or any successor form) is not available for such offering by the Holders;
(ii) if If the Company has, within the 24 month period preceding the date of such request, already effected two registrations on Form S-3 for the Holders pursuant to this Section 12;
(iii) If the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,0003 million;
(iiiiv) if If the Company shall furnish furnishes to all the Initiating Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s President or Chief Executive Officer or Chairman of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the Company, it would not be seriously detrimental to in the best interests of the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such timeas requested under this Section 12, in which event provided that the Company shall have the may only utilize this right of deferral once, with respect to each request, to defer such the filing of the Form S-3 registration for a period of not more than ninety (90) 120 days after receipt of from the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company Corporation shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company Corporation effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallCorporation will:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, Corporation; provided, however, that the Company Corporation shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 (or any successor or similar form) is not available for such offering by the Holders;Holder; or
(ii) If the Corporation has effected two (2) registrations pursuant to this Section 2.4 within the preceding twelve (12) months; or
(iii) if the Holders, together with the holders of any other securities of the Company Corporation entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;500,000; or
(iiiiv) if the Company Corporation shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Corporation stating that that, in the good faith judgment of the Board of Directors of the CompanyCorporation, it would be seriously detrimental to the Company Corporation and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company Corporation shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety one hundred twenty (90120) days after receipt of the request of the S-3 Initiating Holders, Holder or Holders under this Section 2.4; provided that such right to delay a request shall be exercised by the Company Corporation not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;period; or
(v) in any particular jurisdiction in which the Company Corporation 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company Corporation shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(aA) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(bB) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration (including, if requested, a registration of Registrable Securities which are intended to be offered on a continuous or delayed basis under Rule 415 of the Securities Act, such registration a "Shelf Registration") and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(iI) if Form S-3 (or any successor or similar form) is not available for such offering by the Holders;, or
(iiII) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;1,000,000, or
(iiiIII) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period. If the Company shall give any notice of postponement of a registration statement pursuant to this Section 2.4(b)(iii), the Company shall, at such time as the reason that caused such withdrawal or postponement no longer exists (but in no event later than the time period and provided further that specified in the first clause of this Section 2.4(b)(iii)), use its best efforts to effect the registration under the Securities Act of the Registrable Securities covered by the postponed registration statement in accordance with this Section 2.4 (unless the Holders initiating such registration shall have withdrawn such request, in which case the Company shall not register any securities be considered to have effected an effective registration for the account purposes of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planthis Section 2.4), a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);or
(ivIV) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.4;2.4, or
(vV) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(dC) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.. All such
Appears in 1 contract
Sources: Investor Rights Agreement (Sensus Drug Development Corp)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the 4.1 Holders of at least 5,000,000 twenty-five percent (25%) of the Registrable Securities shall be entitled to request in writing (for purposes of this Section 1.4each, the an “S-3 Initiating HoldersRegistration Request”) registrations of Registrable Securities then owned by such requesting Holders on a written request or requests that the Company effect a registration on Form S-3 registration statement or any successor form under the Securities Act (an “S-3 Registration”) and any related qualification or compliance with respect compliance. The Company shall pay for the expenses of such request as provided in Section 6. The S-3 Registration Request must be made in writing and the S-3 Registration Request shall: (i) specify the number of shares intended to all or a part be offered and sold; (ii) express the present intention of the Registrable Securities owned by requesting Holders to offer or cause the offering of such Holder or Holders, shares for distribution; and (iii) contain the undertaking of the requesting Holders to provide all such information and materials and take all such reasonable action as may be required in order to permit the Company shall:
to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such registration statement. The Company shall (a) promptly give written notice of the proposed registration, and any related qualification or compliance, registration to all other Holders; and
, and (b) use all commercially reasonable efforts to effect, as soon as practicable, practicable file an S-3 Registration and use its reasonable best efforts to effect as soon as practicable such registration and to obtain all such qualifications and compliances compliance as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such the requesting Holders’ Registrable Securities as are specified in such request, the S-3 Registration Request (together with all or such portion of the any Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given received by the Company within fifteen twenty (1520) days after receipt of such written notice from the Company, ); provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
4: (i) if Form S-3 is not available for such offering by the requesting Holders;
; (ii) if the requesting Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate gross price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
1,000,000; (iii) if within thirty (30) days of receipt of a written request from the requesting Holders, the Company shall furnish gives notice to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by of the Company’s intention to make its Initial Public Offering or a public offering within ninety (90) days; (iv) if the Company furnishes the requesting Holders with a certificate of the President, Chief Executive Officer or Chairman of the Board of Directors the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such a registration statement to be effected at filed in the near future, such timeregistration obligation shall be deferred for not more than one hundred twenty (120) days, in which event but the Company shall have the right not be entitled to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not deferral more than once in any twelve (12) -month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
period; (v) if 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 or process in effecting such registration, qualification or compliance;
; or (v) the Company has, within the twelve (12) month period preceding the date of such request, already effected one registration on Form S-3 for any Holder pursuant to this Section 4; or (vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty ending one hundred eighty (30180) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following after the effective date of a Company-initiated registration statement subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made 2. The Company’s obligations pursuant to this Section 1.4 and the Company 4 shall include such information in the written notice referred terminate after it has effected three (3) registrations on Form S-3 pursuant to in this Section 1.4(a)4. The provisions of Registrations under this Section 1.2(b) 4 shall not be applicable to such request (with the substitution of Section 1.4 counted as requests for references registration effected pursuant to Section 1.2)3 above.
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Form S-3 Registration. After In the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case event the Company shall receive a written request from the Holders of at least 5,000,000 more than fifty percent (50%) of the Registrable Securities then outstanding (for purposes of this Section 1.4, the “S-3 "Initiating Holders”") a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holder's or Initiating Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given to the Company by any such other Holder or Holders within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 (or any successor or similar form) is not available for such offering by the Holders;, or
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;1,000,000, or
(iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for (a) a period of not more than ninety sixty (9060) days after receipt of the request of the S-3 Initiating HoldersHolder or Initiating Holders under this Section 2.4; and (b) a period of not more than thirty (30) days after the lapse of the sixty (60) day deferral referenced in Section 2.4(b)(iii)(a) immediately above; provided, provided that such right rights to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planperiod, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);or
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 for the Holders pursuant to this Section 1.4;2.4,
(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;, unless the Registered Securities would not, on account of this limitation, be available for offer and sale in at least twenty states, or
(vi) if the CompanyCompany has, within thirty the one hundred eighty (30180) days of receipt of day period preceding the request date of such S-3 Initiating Holdersrequest, gives notice of its bona fide intention to effect the filing of effected a Company initiated registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Notwithstanding any provision herein to the contrary, (i) one hundred percent (100%) of the ZoneNetwork Registrable Securities held by each Holder of ZoneNetwork Registrable Securities, and each such Holder's permitted transferees or assignees, shall not be included in the Registrable Securities then outstanding for the purposes of this Section 2.4 until the date six (6) months from the date of the Original Investors' Rights Agreement, and thereafter fifty percent (50%) of the ZoneNetwork Registrable Securities held by each Holder of ZoneNetwork Registrable Securities, and each such Holder's permitted transferees or assignees, shall not be included in the Registrable Securities then outstanding until the date twelve (12) months from the date of the Original Investors' Rights Agreement (ii) one hundred percent (100%) of the Golf.▇▇▇ ▇▇▇istrable Securities held by each Holder of Golf.▇▇▇ ▇▇▇istrable Securities, and each such Holder's permitted transferees or assignees, shall not be included in the Registrable Securities then outstanding for the purposes of exercising the demand rights set forth in this Section 2.4 until the date six (6) months from the date hereof, and thereafter fifty percent (50%) of the Golf.▇▇▇ ▇▇▇istrable Securities held by each Holder of Golf.▇▇▇ ▇▇▇istrable Securities, and each such Holder's permitted transferees or assignees, shall not be included in the Registrable Securities then outstanding for the purposes of exercising the demand rights set forth in this Section 2.4 until the date twelve (12) months from the date hereof; provided that the restrictions set forth in this sentence shall not be interpreted to limit the ability of any Holder of Golf.▇▇▇ ▇▇▇istrable Securities from exercising their rights pursuant to Section 2.3 hereunder.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Initiating Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, Company is given as set forth in Section 3.02; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.41.15:
(i) if the Company is not qualified as a registrant entitled to use Form S-3 is not available for such offering by (or the Holdersapplicable successor form);
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0001,000,000;
(iii) during the period starting with the date 60 days prior to the Company's good faith estimate of the date of filing of, and ending on a date one hundred 180 days after the effective date of, a Company-initiated registration other than a registration relating solely to employee benefit plans; provided that the Company is actively employing good faith commercially reasonable efforts to cause such registration statement to become effective;
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 45 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.15; provided, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further however, that the Company shall not register utilize this right more than twice in any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)12 month period;
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, has already effected one (1) registration on Form S-3 pursuant to this Section 1.4;at the request of any Holders in the previous six month period; or
(vvi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to the service of process in effecting such registration, qualification or compliance;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file and use its best efforts to bring effective a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 1.15 shall not be counted as demands for registration or registrations effected pursuant to Section 1.02. If the Holders of Registrable Securities requesting registration under this Section 1.15 intend to distribute the Registrable Securities covered by their request by means of an underwriting, the provisions of Section 1.02(b) shall apply to such registration.
Appears in 1 contract
Sources: Investors' Rights Agreement (International Food & Wine Consultants, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;,
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than two million dollars ($3,000,000;2,000,000),
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within ninety (90) days, other than pursuant to a Special Registration Statement,
(iv) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety thirty (9030) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.4; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);period,
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 for the Holders pursuant to this Section 1.4;2.4, or
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective. .
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Section 2.2.
Appears in 1 contract
Sources: Investor Rights Agreement (HealthWarehouse.com, Inc.)
Form S-3 Registration. After (a) Notwithstanding anything in Section 5.1 or Section 5.2 to the Initial Offeringcontrary, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In in case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this any GA Registration Party or HF Registration Party or, subject to Section 1.45.3(b), the “S-3 Initiating Holders”) Management Stockholder or eRx Stockholder a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersRegistration Party, and the Company is then eligible to use Form S-3 for the resale of Registrable Securities, the Company shallCompany, subject to Section 5.3(b), will:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersRegistration Parties; and
(bii) promptly file and use all commercially its reasonable best efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registration Party’s Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Registration Party joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:5.3 (or, with respect to a request under Section 5.4, any Shelf Take-Down pursuant to Section 5.4):
(iA) if Form S-3 is not available for such offering by the HoldersRegistration Parties;
(iiB) if the HoldersRegistration Parties, together with the holders of any other securities of the Company Other Securities entitled to inclusion in such registrationregistration (or Shelf Take-Down, as applicable), propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,00015 million;
(iiiC) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the Registration Parties a certificate signed by the Company’s Chief Executive Officer chief executive officer or Chairman chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of as evidenced by a resolution by the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected (or, with respect to a Shelf Take-Down under Section 5.4, for the securities of the Company to be sold pursuant thereto) at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement (or Shelf Take-Down) for a period of not more than ninety (90) 60 days after receipt of the request of the S-3 Initiating HoldersRegistration Party under this Section 5.3 (or Section 5.4, provided as applicable); provided, that such right shall be exercised by the Company shall not utilize this right, together with any other deferral or suspension of the Company’s obligations under Section 5.1 or this Section 5.3, more than once in any twelve (12) -month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivD) subject to Section 5.3(e), if the Company has, within the twelve (12) six-month period preceding the date of such request, already effected one (1) registration on Form S-3 for a Registration Party pursuant to this Section 1.4;5.3 (or effected one Shelf Take-Down pursuant to Section 5.4, as applicable); provided, that any such registration shall be deemed to have been “effected” if the registration statement relating thereto (x) has become or been declared or ordered effective under the Securities Act, and any of the Registrable Securities of the Registration Party included in such registration have actually been sold thereunder, (y) has remained effective for a period of at least 180 days in the case of a registration on Form S-3 for a GA Registration Party or HF Registration Party and (z) has remained effective for a period of at least 90 days in the case of a registration on Form S-3 for the eRx Stockholders; or
(vE) 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;.
(vib) if With respect to Management Stockholders and eRx Stockholders: (i) the Company, within thirty (30) days of receipt of the Management Stockholders shall only be entitled to request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts effect a registration on Form S-3 pursuant to cause such registration statement to become effective; or
Section 5.3(a) (viiA) during the period starting with on or after the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days that is twelve months following the effective date of a Company-initiated registration subject IPO Date and (B) on no more than two occasions and (ii) the eRx Stockholders shall only be entitled to Section 1.3 above, provided request that the Company effect a registration on Form S-3 pursuant to Section 5.3(a) (A) on or after the date that is actively employing eighteen months following the IPO Date and (B) on no more than one occasion. In order for the eRx Stockholders or Management Stockholders to exercise this request, the written request provided under Section 5.3(a) shall be signed by eRx Stockholders or Management Stockholders, as applicable, holding in good faith all commercially reasonable efforts excess of 50% of the portion of the Voting Power held by eRx Stockholders or Management Stockholders, respectively (or in the case of the Management Stockholders, such lesser amount as may be agreed to cause such by the Board). A registration statement requested under this Section 5.3(b) shall not be deemed to become effectivehave been effected upon the occurrence of any of the events specified in Section 5.1(e); provided, that the Management Stockholders or eRx Stockholders, as applicable, did not request withdrawal of the applicable registration statement.
(c) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and Other Securities so requested to be registered promptly after receipt of the request or requests of the Registration Parties (the “Form S-3 Registration Statement”) and any such Registration Party may request that such Form S-3 Registration Statement constitute a shelf offering on a delayed or continuous basis in accordance with Rule 415 under the Securities Act (a “Form S-3 Shelf Registration Statement”), in which case the provisions of Section 5.4 shall also be applicable.
(d) If the S-3 Initiating Holders GA Registration Parties or HF Registration Parties intend to distribute the Registrable Securities covered by their request under this Section 5.3 by means of an underwritingunderwriting (it being agreed that the Management Stockholders and the eRx Stockholders shall not be entitled to request an underwritten offering), they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and 5.3 and, subject to the limitations set forth in Section 5.3(a), the Company shall include such information in the written notice referred to in Section 1.4(a5.3(a). The provisions In such event, the right of Section 1.2(bany Registration Party to include Registrable Securities in such registration (or Underwritten Shelf Take-Down, as applicable) shall be applicable conditioned upon such Registration Party’s participation in such underwriting and the inclusion of such Registration Party’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the GA Registration Parties and HF Registration Parties participating in the registration (or Underwritten Shelf Take-Down, as applicable) and the requesting GA Registration Party or HF Registration Party) to the extent provided herein. All Registration Parties proposing to distribute their securities through such request underwriting shall (together with the substitution Company as provided in Section 5.7) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 1.4 for references 5.3 or Section 5.4, if the managing underwriter advises the Company and the Registration Parties participating in such underwriting in writing that marketing factors require a limitation of the number of shares to Section 1.2be underwritten, then the Company shall so advise all such Registration Parties, and, subject to the priorities described in Article IV with respect to the GA Registration Parties and HF Registration Parties, the number of shares of Registrable Securities that may be included in the underwriting shall be allocated first among all such Registration Parties, in proportion (as nearly as practicable) to the Voting Power held by each such Registration Party at the time of the filing of the registration statement; provided, however, that the number of shares of Registrable Securities held by such Registration Parties to be included in such underwriting shall not be reduced unless all Other Securities are first entirely excluded from the underwriting. Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration (or Underwritten Shelf Take-Down, as applicable).
(de) Subject to Notwithstanding the foregoing, if the Company shall file receive from any Holders of Registrable Securities then outstanding a written request or requests under Section 5.3 that the Company effect a registration statement covering the Registrable Securities on Form S-3 that includes only those items and other securities so requested that information that is required to be registered as soon as practicable after receipt included in parts I and II of such Form, and does not include any additional or extraneous items of information (e.g., a lengthy description of the request Company or requests of the Company’s business) (an “Ordinary S-3 Initiating HoldersRegistration Statement”), then Section 5.3(a)(ii)(D) shall not apply to such Ordinary S-3 Registration Statement request.
Appears in 1 contract
Form S-3 Registration. After (a) Notwithstanding anything in Section 5.1 or Section 5.2 to the Initial Offeringcontrary, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In in case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this any GA Registration Party or HF Registration Party or, subject to Section 1.45.3(b), the “S-3 Initiating Holders”) Management Stockholder or eRx Stockholder a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersRegistration Party, and the Company is then eligible to use Form S-3 for the resale of Registrable Securities, the Company shallCompany, subject to Section 5.3(b), will:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersRegistration Parties; and
(bii) promptly file and use all commercially its reasonable best efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registration Party’s Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Registration Party joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:5.3 (or, with respect to a request under Section 5.4, any Shelf Take-Down pursuant to Section 5.4):
(iA) if Form S-3 is not available for such offering by the HoldersRegistration Parties;
(iiB) if the HoldersRegistration Parties, together with the holders of any other securities of the Company Other Securities entitled to inclusion in such registrationregistration (or Shelf Take-Down, as applicable), propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,00015 million;
(iiiC) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the Registration Parties a certificate signed by the Company’s Chief Executive Officer chief executive officer or Chairman chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of as evidenced by a resolution by the CompanyBoard, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected (or, with respect to a Shelf Take-Down under Section 5.4, for the securities of the Company to be sold pursuant thereto) at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement (or Shelf Take-Down) for a period of not more than ninety (90) 60 days after receipt of the request of the S-3 Initiating HoldersRegistration Party under this Section 5.3 (or Section 5.4, provided as applicable); provided, that such right shall be exercised by the Company shall not utilize this right, together with any other deferral or suspension of the Company’s obligations under Section 5.1 or this Section 5.3, more than once in any twelve (12) -month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivD) subject to Section 5.3(e), if the Company has, within the twelve (12) six-month period preceding the date of such request, already effected one (1) registration on Form S-3 for a Registration Party pursuant to this Section 1.4;5.3 (or effected one Shelf Take-Down pursuant to Section 5.4, as applicable); provided, that any such registration shall be deemed to have been “effected” if the registration statement relating thereto (x) has become or been declared or ordered effective under the Securities Act, and any of the Registrable Securities of the Registration Party included in such registration have actually been sold thereunder, (y) has remained effective for a period of at least 180 days in the case of a registration on Form S-3 for a GA Registration Party or HF Registration Party and (z) has remained effective for a period of at least 90 days in the case of a registration on Form S-3 for the Management Stockholders or the eRx Stockholders; or
(vE) 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;.
(vib) if With respect to Management Stockholders and eRx Stockholders: (i) the Company, within thirty (30) days of receipt of the Management Stockholders shall only be entitled to request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts effect a registration on Form S-3 pursuant to cause such registration statement to become effective; or
Section 5.3(a) (viiA) during the period starting with on or after the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days that is eighteen months following the effective date of a Company-initiated registration subject IPO Date and (B) on no more than two occasions and (ii) the eRx Stockholders shall only be entitled to Section 1.3 above, provided request that the Company effect a registration on Form S-3 pursuant to Section 5.3(a) (A) on or after the date that is actively employing eighteen months following the IPO Date and (B) on no more than one occasion. In order for the eRx Stockholders or Management Stockholders to exercise this request, the written request provided under Section 5.3(a) shall be signed by eRx Stockholders or Management Stockholders, as applicable, holding in good faith all commercially reasonable efforts excess of 50% of the portion of the Voting Power held by eRx Stockholders or Management Stockholders, respectively. A registration requested under this Section 5.3(b) shall not be deemed to cause such have been effected upon the occurrence of any of the events specified in Section 5.1(e); provided, that the Management Stockholders or eRx Stockholders, as applicable, did not request withdrawal of the applicable registration statement to become effectivestatement.
(c) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and Other Securities so requested to be registered promptly after receipt of the request or requests of the Registration Parties (the “Form S-3 Registration Statement”) and any such Registration Party may request that such Form S-3 Registration Statement constitute a shelf offering on a delayed or continuous basis in accordance with Rule 415 under the Securities Act (a “Form S-3 Shelf Registration Statement”), in which case the provisions of Section 5.4 shall also be applicable.
(d) If the S-3 Initiating Holders GA Registration Parties or HF Registration Parties intend to distribute the Registrable Securities covered by their request under this Section 5.3 by means of an underwritingunderwriting (it being agreed that the Management Stockholders and the eRx Stockholders shall not be entitled to request an underwritten offering), they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and 5.3 and, subject to the limitations set forth in Section 5.3(a), the Company shall include such information in the written notice referred to in Section 1.4(a5.3(a). The provisions In such event, the right of Section 1.2(bany Registration Party to include Registrable Securities in such registration (or Underwritten Shelf Take-Down, as applicable) shall be applicable conditioned upon such Registration Party’s participation in such underwriting and the inclusion of such Registration Party’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the GA Registration Parties and HF Registration Parties participating in the registration (or Underwritten Shelf Take-Down, as applicable) and the requesting GA Registration Party or HF Registration Party) to the extent provided herein. All Registration Parties proposing to distribute their securities through such request underwriting shall (together with the substitution Company as provided in Section 5.7) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 1.4 for references 5.3 or Section 5.4, if the managing underwriter advises the Company and the Registration Parties participating in such underwriting in writing that marketing factors require a limitation of the number of shares to Section 1.2be underwritten, then the Company shall so advise all such Registration Parties, and, subject to the priorities described in Article IV with respect to the GA Registration Parties and HF Registration Parties, the number of shares of Registrable Securities that may be included in the underwriting shall be allocated first among all such Registration Parties, in proportion (as nearly as practicable) to the Voting Power held by each such Registration Party at the time of the filing of the registration statement; provided, however, that the number of shares of Registrable Securities held by such Registration Parties to be included in such underwriting shall not be reduced unless all Other Securities are first entirely excluded from the underwriting. Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration (or Underwritten Shelf Take-Down, as applicable).
(de) Subject to Notwithstanding the foregoing, if the Company shall file receive from any Holders of Registrable Securities then outstanding a written request or requests under Section 5.3 that the Company effect a registration statement covering the Registrable Securities on Form S-3 that includes only those items and other securities so requested that information that is required to be registered as soon as practicable after receipt included in parts I and II of such Form, and does not include any additional or extraneous items of information (e.g., a lengthy description of the request Company or requests of the Company’s business) (an “Ordinary S-3 Initiating HoldersRegistration Statement”), then Section 5.3(a)(ii)(D) shall not apply to such Ordinary S-3 Registration Statement request.
Appears in 1 contract
Form S-3 Registration. After Any Holder or group of Holders holding at least $2,500,000 of Registrable Securities may, at any time during the Initial Offeringfive-year period beginning on the date of this Agreement, demand that the Company shall use its commercially reasonable efforts to qualify for effect a registration on Form S-3 or any comparable or successor form or formswith respect to at most $2,500,000 of Registrable Securities. In case the The Company shall receive from be obligated to effect such registration only once during each calendar year. Any such registration shall also trigger the Holders piggy-back registration rights of at least 5,000,000 any Holder that does not participate in the demand registration. The value of the Registrable Securities (for purposes of this Section 1.4, 2.3 shall be determined by the “S-3 Initiating Holders”) closing price of the Company's Common Stock as reported by NASDAQ or any securities exchange or market on which the Company's Common Stock is listed on the date the demand for registration is received by the Company. Upon receipt of a written request or requests demand as set forth herein that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; , and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification qualification, or compliance, compliance pursuant to this Section 1.4:
2.3: (i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the holders a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders shareholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself Holder or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction Holders under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
2.3; or (vii) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Sources: Acquisition and Stock Exchange Agreement (Ubics Inc)
Form S-3 Registration. After (a) Notwithstanding the Initial Offeringprovisions of Sections 2.1 and 2.2, at such time as the Company Corporation shall have qualified for the use its commercially reasonable efforts to qualify for registration on of Form S-3 promulgated under the Securities Act or any comparable or successor form or forms. In thereto, in case the Company Corporation shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) any Holder a written request or requests that the Company Corporation effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned held by such Holder or HoldersHolder, the Company shall:
which request shall (a) promptly give written notice specify the number of Registrable Securities intended to be sold or disposed of and the proposed registration, holders thereof and any related qualification or compliance, to all other Holders; and
(b) the intended method of distribution, including the name of the lead underwriter, if available, the Corporation will use all its commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company Corporation shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.3:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose requesting Holder proposes to sell Registrable Securities and such other securities (if any) at an that would result in aggregate price to the public (net of any underwriters’ discounts or commissions) gross proceeds of less than $3,000,00010,000,000;
(ii) if within 30 days of receipt of a written request from the Holder pursuant to this Section 2.3, the Corporation gives notice to such Holder of the Corporation’s intention to make a public offering within 90 days, other than pursuant to a Registration Statement relating to any employee benefit plan or with respect to any reorganization or other transaction under Rule 145 of the Securities Act (or successor rule thereto);
(iii) if the Company shall furnish to a Shelf Registration is then effective and includes all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities of such Holder and permits an Underwritten Offering of such Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, Corporation has already effected one (1) registration 3 registrations on Form S-3 pursuant to this Section 1.4;for the requesting Holders in the immediately preceding 12-month period; or
(v) in any particular jurisdiction in which the Company Corporation 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;.
(vib) if To the Company, within thirty (30) days of receipt of extent the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect Corporation is a WKSI at the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided time that the Company Shelf Registration Statement is actively employing in good faith all commercially reasonable efforts to cause be filed, the Corporation shall file an automatic Shelf Registration Statement which covers such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectiveRegistrable Securities.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made Registrations effected pursuant to this Section 1.4 and the Company 2.3 shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall not be applicable to such request (with the substitution of Section 1.4 counted as demands for references registrations effected pursuant to Section 1.2)2.1.
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (ZAIS Group Holdings, Inc.)
Form S-3 Registration. After the Initial Offering, If the Company shall is eligible to use its commercially reasonable efforts to qualify for registration on Form S-3 under the Securities Act (or any comparable or similar successor form or forms. In case the Company form) and shall receive from a Purchaser and its permitted transferees (the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “"S-3 Initiating Holders”INITIATING HOLDERS") a written request or requests that the Company effect a registration on such Form S-3 S-3, including without limitation, pursuant to Rule 415 of the Securities Act and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by the S-3 Initiating Holders and its permitted transferees (provided, that the S-3 Initiating Holders registering Registrable Securities in such Holder registration (together with all other holders of Registrable Securities to be included in such registration) propose to sell their Registrable Securities at an aggregate price (calculated based upon the Market Price of the Registrable Securities on the date of filing of the Form S-3 with respect to such Registrable Securities) to the public of no less than the lesser of $6,000,000 or Holdersthe remaining Registrable Securities), the Company shall:
shall (ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holdersholders of Registrable Securities; and
and (bii) use all commercially reasonable efforts to effect, as soon as practicable, use reasonable best efforts to file and effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ the Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders holder in the group of holders joining in such request as are is specified in a written request given within fifteen (15) days after the holder's receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect . No registration requested by any such registration, qualification or compliance, S-3 Initiating Holders pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company 1.3 shall furnish to all Holders requesting be deemed a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective1.1.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Sources: Registration Rights Agreement (Advance Nanotech, Inc.)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.42.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled Holders requesting registration on Form S-3 and those Holders requesting registration pursuant to inclusion in Section 2.3 on such registration, Form S-3 propose to sell Registrable Securities and such other securities (if any) at having an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,0005,000,000;
(iii) if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4(a), (b) and/or (c), the Company gives notice to such Holder or Holders of the Company's intention to effect a registration of its securities within ninety (90) days, other than pursuant to a Special Registration Statement;
(iv) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration statement to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, Holder or Holders under this Section 2.4; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.42.4(a) (b) and/or (c);
(vvi) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the Holders. Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Sections 2.2 or 2.3, respectively.
(d) Form S-3 Initiating HoldersRegistration at Registrant's Expense. In the event that the Company shall receive from DCG a written request or requests to register Common Stock then held by DCG on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of such Common Stock, the Company will, as soon as practicable thereafter, (A) promptly give written notice of the proposed registration, and any related qualification or compliance, to all Holders of Registrable Securities; and (B) effect such registration and any qualifications and compliances as may be required to permit or facilitate the sale and distribution of such Common Stock, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.4(d):
(i) if Form S-3 is not available for such offering by DCG;
(ii) if the Company shall furnish to DCG a certificate signed by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration to be effected at such time, in which event the Company shall have the right to defer the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of DCG under this Section 2.4(d), provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period; or
(iii) 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. All Registration Expenses and Selling Expenses incurred in connection with any registration, qualification or compliance pursuant to this Section 2.4(d) shall be borne by DCG, pro rata on the basis of the number of shares so registered; provided, however, DCG shall not be responsible for the payment of Registration Expenses or Selling Expenses attributable to the registration of shares of any other selling stockholder(s) pursuant to this Section 2.4(d).
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersHolders where the aggregate net proceeds from the sale of such Registrable Shares equals to at least five hundred thousand United States dollars ($500,000), the Company shallwill within 20 days after receipt of any such request:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to file within 60 days of providing such notice, and effect, as soon as practicablereasonably practicable thereafter, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
2.2: (i) if Form S-3 is not available for such offering by the Holders;
; (ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than $5,000,000 (net of any underwriters’ ' discounts or commissions) of less than $3,000,000;
); (iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 120 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 2.2; provided, provided however, that such right shall be exercised by the Company may not utilize this right more than once in any twelve (12) twelve-month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
period; (iv) if the Company has, within the twelve (12) -month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;
2.2; (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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that compliance unless the Company is actively employing already qualified to do business or subject to service of process in good faith all commercially reasonable efforts to cause such registration statement to become effectivethat jurisdiction; or
or (viivi) during the period starting with the date thirty (30) ending 180 days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following after the effective date of a Company-initiated registration statement subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective2.3.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made Registrations effected pursuant to this Section 1.4 and the Company 2.2 shall include such information in the written notice referred not be counted as demands for registration or registrations effected pursuant to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoingSections 2.1 or 2.3, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.respectively
Appears in 1 contract
Form S-3 Registration. After Beginning upon the Initial Offeringexpiration of the Lock-Up Agreement between the Stockholder and the Representatives of the Company's underwriters dated as of even date herewith, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In in case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.410.3:
(i) if Form S-3 (or any successor or similar form) is not available for such offering by the Holders;, or
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;500,000, or
(iii) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 10.3; provided, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock planperiod, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);or
(iv) if the Company has, within the twelve six (126) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Holders pursuant to this Section 1.4;10.3, or
(v) if the Holders are requesting that the Company file such a registration 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the Holders. All such Registration Expenses incurred in connection with registrations requested pursuant to this Section 10.3 after the first two (2) registrations shall be paid by the selling Holders pro rata in proportion to the number of shares sold by each.
(d) The Company will use its best efforts to qualify for the use of the Form S-3 Initiating Holdersregistration statement or any successor form as promptly as reasonably practicable following the closing of the IPO.
Appears in 1 contract
Sources: Stockholder Agreement (Horizon Organic Holding Corp)
Form S-3 Registration. After the Initial OfferingUnless otherwise requested by SB, the Company shall will use its commercially reasonable best efforts to qualify for prepare and file (and on or before the Second Closing Date, effect) a registration statement on Form S-3 that contemplates a distribution of securities on a delayed or any comparable or successor form or forms. In case continuous basis pursuant to Rule 415 under the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 1933 Act and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersSecurities; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
: (i1) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any SB other securities than by reason of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities Company's action or inaction; or (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii2) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 SB a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer the filing or effectiveness of Directors the Form S-3 registration statement for a period of time deemed necessary by the Company, but in any event not to exceed ninety (90) days.
(a) Use its best efforts to cause such registration statement to become effective on or before the Second Closing Date, and, upon the request of SB, keep such registration statement effective for up to two (2) years and update such registration statement during such two-year period; provided, however, if the Company shall furnish to SB a certificate signed by the President of the Company stating that in the good faith judgment of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timeremain effective, in which event the Company shall have the right to defer such filing suspend the effectiveness of the registration statement for a period of time deemed necessary by the Company, but in any event not more than to exceed ninety (90) days after receipt days.
(b) Furnish to SB such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the 1933 Act, and such other documents as it may reasonably request in order to facilitate the disposition of Registrable Securities.
(c) Use its best efforts to register and qualify the S-3 Initiating Holderssecurities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by SB, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in connection therewith or as a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(v) in any particular jurisdiction in which the Company would be required condition thereto to qualify to do business or to execute file a general consent to service of process in effecting any such registration, qualification states or compliance;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectivejurisdictions.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Sources: Stock Issuance Agreement (Smithkline Beecham Properties LTD)
Form S-3 Registration. After the Initial Offering(a) If Form S-3, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (thereto, is available for purposes of this Section 1.4such offering, the “S-3 Initiating Holders”) a written ValueAct may request or requests in writing that the Company Corporation effect a registration on Form S-3 and any related qualification or compliance with respect to all or (a part of the Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed registration"Registration Request"), and any related qualification or compliance, to all other Holders; and
(b) the Corporation shall use all commercially reasonable its best efforts to effect, as soon as practicable, such registration and all such qualifications and compliances registration, qualification or compliance as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are Class A Stock specified in such requestRegistration Request and to maintain the registration on Form S-3 for 180 days following the effectiveness thereof; provided, together with all or that such portion 180-day period may be suspended if, in the good faith judgment of the Registrable Securities Board, a corporate event requires such suspension, the Corporation shall use its best efforts to reinstate the effectiveness thereof for the remaining number of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company days. The Corporation shall not be obligated to effect any such registration, qualification or compliance, more than three registrations on Form S-3 for ValueAct pursuant to this Section 1.4:3.1(a), or be obligated to effect more than one registration on Form S-3 during any six-month period; provided, however, that in no event shall the Corporation be obligated to effect a registration statement under this Section 3.1(a) within 120 days of the end of the effective period of any prior registration statement effected by the Corporation pursuant to a Registration Request. The anticipated net offering price of the shares of Class A Stock specified in the Registration Request shall be at least $10,000,000. Any registration statement filed pursuant to this Section 3.1(a) may include other shares of Class A Stock that the Corporation is required to include in such registration statement by virtue of the Stockholders Agreement; provided, that in no event shall the number of shares of Class A Stock to be registered pursuant to the Registration Request be reduced in order to comply with any provision of the Stockholders Agreement
(b) The Corporation shall not be obligated to effect the filing of a registration statement pursuant to Section 3.1(a) hereof (i) if Form S-3 is not available for the Corporation has furnished to ValueAct, within 30 days after receipt of a Registration Request an opinion of counsel (in form and substance reasonably satisfactory to ValueAct) to the Corporation to the effect that ValueAct may effect the sale and distribution of shares of Class A Stock held by ValueAct included in the Registration Request in accordance with its intended method of distribution without the registration of such offering by securities under the Holders;
1933 Act; or (ii) if the Holders, together with the holders Corporation has furnished to ValueAct within 30 days after receipt of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
(iii) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 Registration Request a certificate signed by the Company’s Chief Executive Officer or Chairman an executive officer of the Board of Directors Corporation stating that that, in the good faith judgment of the Board such registration would require premature disclosure of Directors material information relating to a pending corporate development or a special audit of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such timeCorporation, in which event the Company Corporation shall have the right to defer such filing the obligations contained in this Section 3.1 for a period of not more than ninety 165 days (90including the time period used for filing the applicable registration statement) days after receipt of the request of the S-3 Initiating HoldersRegistration Request, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing Corporation has not, in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
any twelve-month period, utilized the right in this clause (viiii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effectivemore than once.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders.
Appears in 1 contract
Sources: Investment Agreement (Martha Stewart Living Omnimedia Inc)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) any Investor or Investors a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder Investor or HoldersInvestors, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; andInvestors;
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such HoldersInvestor’s or Investors’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Investor joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
4: (i1) if Form S-3 is not available for such offering by the Holders;
Investors; (ii2) if the HoldersInvestors, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;
2,000,000; (iii3) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the Investors a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such timetime owing to a material pending transaction or development, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersInvestor or Investors under this Section 4; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve (12) 12)- month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety period; (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv4) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one two (12) registration registrations on Form S-3 for the Investors pursuant to this Section 1.4;
4; (v5) 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;
compliance or (vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii6) during the period starting with the date thirty ending one hundred eighty (30180) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following after the effective date of a Company-initiated registration statement subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.3; and
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating HoldersInvestors. Registrations effected pursuant to this Section 4 are in addition to, and not in lieu of, their right to registration under Sections 2 and 3 and shall not be counted as demands for registration or registrations effected pursuant to Sections 2 or 3, respectively.
Appears in 1 contract
Form S-3 Registration. After Following the Initial Offering, the Company shall use its commercially reasonable best efforts to qualify for registration on Form S-3 or any comparable or successor form or formsfor secondary sales. In case the Company shall receive from the any Holder or Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 (or any successor to Form S-3) or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) 2.4.1. promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersHolders of Registrable Securities; and
(b) use all commercially reasonable efforts to effect, 2.4.2. as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4SECTION 2.4:
(i) 1. if Form S-3 (or any successor or similar form) is not available for such offering by the Holders;; or
(ii) 2. if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,000;500,000; or
(iii) 3. if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this SECTION 2.4; provided, provided that such right to delay a request shall be exercised by the Company not no more than once twice in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);one-year period; or
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(v) 4. 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a)2.4.3. The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a Form S-3 registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holders. All Selling Expenses incurred in connection with registrations requested pursuant to this SECTION 2.4 shall be paid by the selling Holders pro rata in proportion to the number of shares sold by each.
2.4.4. The rights of holders to require registration pursuant to this Section 2.4 shall be in addition to the rights granted under Section 2.2 hereof and no request made pursuant to this Section 2.4 shall be deemed a request under Section 2.2 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Zebu)
Form S-3 Registration. After the Initial Offering, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In case the Company shall receive from the any --------------------- Holder or Holders of at least 5,000,000 not less than twenty five percent (25%) of the Registrable Securities, or any Holder or Holders of not less than twenty five percent (25%) of the Registrable Securities (for purposes of this referred to in either Section 1.41.1(b)(i) or Section 1.1(b)(ii), the “S-3 Initiating Holders”) in each case then outstanding a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shallwill:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) 15 days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
1.12: (i1) if Form S-3 is not available for such offering by the Holders;
; (ii2) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,000;
1,000,000; (iii3) if the Company shall furnish to all the Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman President of the Board of Directors Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement Form S-3 Registration to be effected at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement for a period of not more than ninety (90) 120 days after receipt of the request of the S-3 Initiating HoldersHolder or Holders under this Section 1.12; provided, provided however, that such right shall be exercised by the Company shall not utilize this right more than once in any twelve month period; (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv4) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration two registrations on Form S-3 for the Holders pursuant to this Section 1.4;
1.12; or (v5) 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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the Holders. All expenses incurred in connection with such registrations, including (without limitation) all registration, filing, qualification, printers' and accounting fees and the reasonable fees and disbursements of counsel for the selling Holder or Holders and counsel for the Company, but excluding any underwriters' discounts or commissions associated with Registrable Securities (the "S-3 Initiating HoldersExpenses"), shall be borne by the Company for two such ------------ registrations pursuant to this Section 1.12. Thereafter, the S-3 Expenses shall be borne pro rata by the Holder or Holders participating in the Form S-3 Registration. Registrations effected pursuant to this Section 1.12 shall not be counted as demands for registration or registrations effected pursuant to Sections 1.2 or 1.3, respectively.
Appears in 1 contract
Form S-3 Registration. After the Initial Offering, (a) Request for a Form S-3 Registration. Upon the Company shall becoming eligible for use its commercially reasonable efforts to qualify for registration on of Form S-3 or any comparable or successor form or forms. In case under the Securities Act in connection with a secondary public offering of its shares of Common Stock, in the event that the Company shall receive from the Holders of at least 5,000,000 Registrable Securities (for purposes of this Section 1.4, the “S-3 any Initiating Holders”) Holder a written request or requests that the Company effect a registration register under the Securities Act on Form S-3 and any related qualification or compliance with respect to (an “S-3 Registration”) the sale of all or a part portion of the Registrable Securities owned by such Initiating Holder or Holders(which S-3 Registration may be a shelf registration pursuant to Rule 415 promulgated under the Securities Act, in which case the provisions of Section 5(f) shall apply), the Company shall give written notice of such request to all of the other Designated Stockholders (other than such Initiating Holder) as promptly as practicable but in no event later than ten Business Days before the anticipated filing date of such Form S-3, which notice shall describe the proposed registration, the intended method of disposition of such Registrable Securities and any other information that at the time would be appropriate to include in such notice, and offer such other Designated Stockholders the opportunity to register the number of Registrable Securities as each such Designated Stockholder may request in writing to the Company, given within ten Business Days of the date on which the Company sent the written notice of such registration. Each request for a S-3 Registration by an Initiating Holder shall state the type and number of the Registrable Securities proposed to be registered and the intended method of disposition thereof, which may include a Partner Distribution. With respect to each S-3 Registration, the Company shall:
, subject to Section 5(b) hereof, (ai) promptly give written notice include in such offering the Registrable Securities of the proposed registrationInitiating Holder and the Designated Stockholders who have requested in writing to participate in such registration on the same terms and conditions as the Registrable Securities of the Initiating Holder included therein (collectively, the “S-3 Participating Stockholders”) and any related qualification or compliance, to all other Holders; and
(bii) use all its commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in file a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price Registration Statement relating to the public S-3 Registration (net of any underwriters’ discounts or commissionstaking into account, among other things, accounting and regulatory matters) of less than $3,000,000;
(iii) if the Company shall furnish and to all Holders requesting a registration statement pursuant to this Section 1.4 a certificate signed by the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and use its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement Registration Statement to become effective; or
(vii) during effective as promptly as practicable but in no event later than one hundred twenty days after it receives a request under this Section 5(a). Notwithstanding the period starting with foregoing, immediately upon determination of the date thirty (30) days prior price at which such Registrable Securities are to be sold in a S-3 Registration that is a firm commitment underwritten public offering, if such price is below the price which the Initiating Holder finds acceptable, the Initiating Holder for the S-3 Registration shall then have the right, by written notice to the Company’s good faith estimate of , to withdraw its Registrable Securities from being included in such offering; provided, that such a withdrawal by the date of Initiating Holder shall constitute and effect an automatic withdrawal by all other S-3 Participating Stockholders. If the filing of Initiating Holder requests, and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that if the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoingWell-Known Seasoned Issuer, the Company shall file a registration statement covering cause such S-3 Registration to be made pursuant to an Automatic Shelf Registration Statement and may omit the names of the S-3 Participating Stockholders and the amount of the Registrable Securities and other securities so requested to be registered as soon as practicable after receipt of the request or requests of the S-3 Initiating Holdersoffered thereunder.
Appears in 1 contract
Form S-3 Registration. After Notwithstanding anything in Section 1.1 or Section 1.2 of this Exhibit A to the Initial Offeringcontrary, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In in case the Company shall receive from the Holders of at least 5,000,000 twenty percent (20%) of Registrable Securities (then outstanding, excluding the Escrow Shares for purposes of this Section 1.4such determination, the “S-3 Initiating Holders”) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, and the Company shallis then eligible to use Form S-3 for the resale of Registrable Securities, the Company will:
(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and
(b) use all commercially reasonable efforts subject to effectany Deferral Periods, as soon as practicable, promptly effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder's or Holders’ ' Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 1.41.3:
(i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ ' discounts or commissions) of less than $3,000,000;2.5 million; or
(iii) if the Company has effected a total of three (3) registrations pursuant to Section 1.1 and Section 1.3 of this Exhibit A, provided, that any such registration shall furnish be deemed to all Holders requesting a have been "effected" if the registration statement pursuant to this Section 1.4 a certificate signed by relating thereto (A) has become or been declared or ordered effective under the Company’s Chief Executive Officer or Chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the S-3 Initiating Holders, provided that such right shall be exercised by the Company not more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act, a registration on and any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form S-3 pursuant to this Section 1.4;
(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;
(vi) if the Company, within thirty (30) days of receipt Securities of the request of such S-3 Initiating Holders, gives notice of its bona fide intention to effect the filing of a registration statement with the SEC within ninety (90Holder(s) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145), provided that the Company is actively employing included in good faith all commercially reasonable efforts to cause such registration statement to become effectivehave actually been sold thereunder and (B) has remained effective for the applicable Effectiveness Period; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective.
(c) If the S-3 Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and the Company shall include such information in the written notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be applicable to such request (with the substitution of Section 1.4 for references to Section 1.2).
(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities and other securities so requested to be registered as soon as practicable promptly after receipt of the request or requests of the S-3 Initiating Holders.. Registrations effected pursuant to this Section 1.3 shall not be counted as requests for registration effected pursuant to Section 1.1 or Section 1.2 respectively of this Exhibit A.
Appears in 1 contract
Sources: Registration Rights Agreement (Deerfield Triarc Capital Corp)
Form S-3 Registration. After (a) Notwithstanding anything in Section 4.1 or Section 4.2 to the Initial Offeringcontrary, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms. In in case the Company shall receive from the Holders of Shareholders holding at least 5,000,000 Registrable Securities 4% of the outstanding Ordinary Shares on the date hereof (for purposes assuming the conversion of this Section 1.4, the “S-3 Initiating Holders”all Preference Shares into Ordinary Shares) a written request or requests that the Company effect a registration on Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or HoldersShareholders, and the Company is then eligible to use Form S-3 for the resale of Registrable Securities, the Company shall:
(ai) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other HoldersShareholders; and
(bii) promptly file and use all its commercially reasonable efforts to effect, as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such HoldersShareholders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders Shareholder joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, ; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, compliance pursuant to this Section 1.4:4.3 (or, with respect to a request under Section 4.4, any Shelf Take-Down pursuant to Section 4.4):
(iA) if Form S-3 is not available for such offering by the HoldersShareholders;
(iiB) if the HoldersShareholders, together with the holders of any other securities of the Company Other Securities entitled to inclusion in such registrationregistration (or Shelf Take-Down, as applicable), propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than $3,000,00020,000,000;
(iiiC) if the Company shall furnish to all Holders requesting a registration statement pursuant to this Section 1.4 the Shareholders a certificate signed by the Company’s Chief Executive Officer chief executive officer or Chairman chairman of the Board of Directors stating that in the good faith judgment of the Board of Directors of as evidenced by a resolution by the CompanyBoard, it would be seriously materially detrimental to the Company and or its stockholders shareholders for such Form S-3 registration statement to be effected (or, with respect to a Shelf Take-Down under Section 4.4, for the securities of the Company to be sold pursuant thereto) at such time, in which event the Company shall have the right to defer such the filing of the Form S-3 registration statement (or Shelf Take-Down) for a period of not more than ninety sixty (9060) days after receipt of the request of the S-3 Initiating Holdersrequesting Shareholders under this Section 4.3 (or Section 4.4, provided as applicable); provided, that such right shall be exercised by the Company shall not utilize this right, together with any other deferral or suspension of the Company’s obligations under Section 4.1 or this Section 4.3, more than once in any twelve (12) month period and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than a registration relating solely to the sale of securities of participants in a Company stock plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered)period;
(ivD) subject to Section 4.3(d), if the Company has, within the twelve six (126) month period preceding the date of such request, already effected one (1) Demand Registration or a registration on Form S-3 pursuant to this Section 1.4;4.3 (or effected one Shelf Take-Down pursuant to Section 4.4, as applicable); provided, that any such registration shall be deemed to have been “effected” if the registration statement relating thereto (x) has become or been declared or ordered effective under the Securities Act, and any of the Registrable Securities of the Shareholders included in such registration have actually been sold thereunder or (y) has remained effective for a period of at least 180 days; or
(vE) in during the 90 days beginning from the date of the pricing of any particular jurisdiction in which Public Offering.
(b) Subject to the foregoing, the Company would shall file a registration statement covering the Registrable Securities and Other Securities so requested to be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance;
(vi) if the Company, within thirty (30) days of registered promptly after receipt of the request or requests of the requesting Shareholders in accordance with Section 4.3(a) (the “Form S-3 Registration Statement”) and any such Shareholder may request that such Form S-3 Initiating Holders, gives notice of its bona fide intention to effect Registration Statement constitute a shelf offering on a delayed or continuous basis in accordance with Rule 415 under the filing of Securities Act (a registration statement with the SEC within ninety (90) days of receipt of such request (other than a registration effected solely to qualify an employee benefit plan or to effect a business combination pursuant to Rule 145“Form S-3 Shelf Registration Statement”), provided that in which case the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or
(vii) during the period starting with the date thirty (30) days prior to the Company’s good faith estimate provisions of the date of the filing of and ending on a date ninety (90) days following the effective date of a Company-initiated registration subject to Section 1.3 above, provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective4.4 shall also be applicable.
(c) If the S-3 Initiating Holders Shareholders intend to distribute the Registrable Securities covered by their request under this Section 4.3 by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 1.4 and 4.3 and, subject to the limitations set forth in Section 4.3(a), the Company shall include such information in the written notice referred to in Section 1.4(a4.3(a). The provisions In such event, the right of Section 1.2(bany Shareholder to include Registrable Securities in such registration (or Underwritten Shelf Take-Down, as applicable) shall be applicable conditioned upon such Shareholder’s participation in such underwriting and the inclusion of such Shareholder’s Registrable Securities in such underwriting (unless otherwise mutually agreed by a majority in interest of the Shareholders participating in the registration (or Underwritten Shelf Take-Down, as applicable) and the requesting Shareholders) to the extent provided herein. All Shareholders proposing to distribute their securities through such request underwriting shall (together with the substitution Company as provided in Section 4.7) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Section 1.4 for references to 4.3 or Section 1.2).
(d) Subject to 4.4, if the foregoinglead underwriter or managing underwriter advises the Company and the Shareholders participating in such underwriting in writing that, in such firm’s good faith view, the Company shall file number of Registrable Securities and Other Securities requested to be included in such registration exceeds the number which can be sold in such offering without being likely to have a registration statement covering significant adverse effect upon the price, timing or distribution of the offering and sale of the Registrable Securities and other securities Other Securities then contemplated, then the Company shall so requested advise such Shareholders, and the number of shares of Registrable Securities that may be included in the underwriting shall be allocated first among all such Shareholders, in proportion (as nearly as practicable) to the number of Ordinary Shares (assuming the conversion of all Preference Shares into Ordinary Shares) held by each such Shareholder at the time of the filing of the Registration Statement; provided, however, that the number of shares of Registrable Securities held by such Shareholders to be registered included in such underwriting shall not be reduced unless all Other Securities are first entirely excluded from the underwriting. Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration (or Underwritten Shelf Take-Down, as soon as practicable after receipt of the request or requests of the S-3 Initiating Holdersapplicable).
Appears in 1 contract