Appears in 9 contracts

Samples: Investors’ Rights Agreement (Audentes Therapeutics, Inc.), Investors’ Rights Agreement (Loxo Oncology, Inc.), Investors’ Rights Agreement (Audentes Therapeutics, Inc.)

Appears in 3 contracts

Samples: Registration Rights Agreement (BridgeBio Pharma, Inc.), Registration Rights Agreement (BridgeBio Pharma LLC), Registration Rights Agreement (BridgeBio Pharma, Inc.)

Inclusion. If, pursuant to Section 3.1, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of ~~an underwriting~~one or more underwritings, they shall so advise the Company as a part of their request made pursuant to Section 3.1, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Company, subject only to the reasonable approval of the holders of a majority of Registrable Securities held by the Initiating Holders. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Section 3.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned or held by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable Securities owned or held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Applovin Corp), Investors’ Rights Agreement (Applovin Corp)

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Remitly Global, Inc.), Investors’ Rights Agreement (Remitly Global, Inc.)

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Impel Neuropharma Inc), Investors’ Rights Agreement (GoPro, Inc.)

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Gitlab Inc.), Investors’ Rights Agreement (Gitlab Inc.)

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Mirum Pharmaceuticals, Inc.), Investors’ Rights Agreement (Reneo Pharmaceuticals, Inc.)

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Progyny, Inc.), Investors’ Rights Agreement (Progyny, Inc.)

Inclusion. If, pursuant to Section ~~3.1~~2.2, the 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 Section ~~3.1~~2.2, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Company~~, subject only to the reasonable approval of the holders of a majority of Registrable Securities held by the Initiating Holders~~. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section ~~3.4(e~~2.5(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Section ~~3.3~~2.4, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned or held by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable Securities owned or held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. Underwriter Cutback. In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Section 2.3, the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters. If the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders in proportion (as nearly as practicable to) the number of Registrable Securities owned or held by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. Notwithstanding the foregoing, in no event shall (a) the number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering or (b) the number of Registrable Securities included in the offering be reduced below twenty-five percent (25%) of the total number of securities included in such offering, unless such offering is the IPO, in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other stockholder’s securities are included in such offering. For purposes of the provision in this Section 2.4(b) concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Securities owned or held by all Persons included in such “selling Holder,” as defined in this sentence. Registration Not Effected. For purposes of Section 2.2, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.4(a), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included. Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible: prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for a period of up to one hundred twenty (~~100~~120) ~~shares~~days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided, however, that (i) such one hundred twenty (120) day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed basis, subject to compliance with applicable SEC rules, such one hundred twenty (120) day period shall be extended for up to sixty (60) days, if necessary, to keep the registration statement effective until all such Registrable Securities are sold; prepare and file with the SEC such amendments and supplements to such registration statement, the prospectus and, if required, any free writing prospectus (as defined in Rule 405 under the Securities Act, (a “Free Writing Prospectus”)) used in connection with such registration statement as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement; furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus and any Free Writing Prospectus , as required by the Securities Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities; use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering; use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed; provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration; promptly make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, and use commercially reasonable efforts to cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith; notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus or Free-Writing Prospectus forming a part of such registration statement has been filed; after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus or Free-Writing Prospectus; use its commercially reasonable efforts to obtain for the underwriters one or more “cold comfort” letters, dated the effective date of the related registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” letters; use its commercially reasonable efforts to obtain for the underwriters on the date such securities are delivered to the underwriters for sale pursuant to such registration a legal opinion of the Company’s outside counsel with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature; to the extent the Company is a well-known seasoned issuer (as defined in SEC Rule 405) at the time any request for registration is submitted to the Company in accordance with Section 2.2(b), if so requested, file an Automatic Shelf Registration Statement (as defined in Rule 405 under the Securities Act) to effect such registration; if at any time when the Company is required to re-evaluate its well-known seasoned issuer status for purposes of an outstanding Automatic Shelf Registration Statement (as defined in Rule 405 under the Securities Act) used to effect a request for registration in accordance with Section 2.2(b) the Company determines that it is not a well-known seasoned issuer and (A) the registration statement is required to be kept effective in accordance with this Agreement and (B) the registration rights of the applicable Holders have not terminated, use commercially reasonable efforts to promptly amend the registration statement on a form the Company is then eligible to use or file a new registration statement on such form, and keep such registration statement effective in accordance with the requirements otherwise applicable under this Agreement.

Appears in 1 contract

Samples: Investors’ Rights Agreement

Appears in 1 contract

Samples: Investors’ Rights Agreement (Redaptive, Inc.)

Inclusion. If, pursuant to Section 3.1, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they ~~shall~~ will so advise the Company as a part of their request made pursuant to Section 3.1, and the Company ~~shall~~ will include such information in the Demand Notice. The underwriter(s) will be selected by the Company, subject only to the reasonable approval of the holders of at least a majority of Registrable Securities held by the Initiating Holders. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration ~~shall~~ will be conditioned upon such Holder’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting ~~shall~~ will (together with the Company as provided in Section 3.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Section 3.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders ~~shall~~ will so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting ~~shall~~ will be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned or held by each Holder or in such other proportion as ~~shall~~ will mutually be agreed to by all such selling Holders~~; provided~~. Notwithstanding the foregoing, ~~however~~in no event will (a) the number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering, (b) the number of Registrable Securities included in the offering be reduced below thirty percent (30%) of the total number of securities included in such offering, unless such offering is the IPO, in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other stockholder’s securities are included in such offering or (c) notwithstanding clause (b) above, any Registrable Securities which are not Key Holder Registrable Securities be excluded from such underwriting unless all Key Holder Registrable Securities are first excluded from such offering. For purposes of the provision in this Section 3.3.2 concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, will be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” will be based upon the aggregate number of Registrable Securities owned or held by ~~the Holders to be~~ all Persons included in such ~~underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting~~“selling Holder,” as defined in this sentence. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.

Appears in 1 contract

Samples: Investors’ Rights Agreement (Shattuck Labs, Inc.)

Inclusion. If, pursuant to Section ~~3.1~~2.1, the 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 Section ~~3.1~~2.1, and the Company shall include such information in the Demand Notice. The underwriter(s), which shall be (an) investment banking firm(s) of national reputation, will be ~~selected~~ selected, as applicable, (i) in the event of an offering that includes a primary offering, by the ~~Company, subject only~~ Company and shall be reasonable acceptable to a the ~~reasonable approval of the holders~~ Holders of a majority of the Registrable Securities ~~held~~ then outstanding, and (ii) in the event of an offering that solely includes a secondary offering or a distribution of any Registrable Securities under a shelf registration statement filed pursuant to Rule 415 promulgated under the Securities Act, by the ~~Initiating Holders~~Holders of a majority of the Registrable Securities then outstanding, which shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned only upon such Holder’s participation in such ~~underwriting~~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 ~~3.4(e~~2.4(e)) enter into an underwriting agreement in customary form with the ~~underwriter(s)~~ underwriters selected for such underwriting, which underwriting agreement shall be reasonably acceptable in form and substance to the Company. Notwithstanding any other provision of this Section ~~3.3~~2.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, as follows: (i) first, to TPG (if it is an Initating Holder) until all Registrable Securities held by TPG that TPG requested be included in such underwriting are included in such underwriting; and (ii) thereafter, in proportion (as nearly as practicable) to the number of Registrable Securities owned ~~or held~~ by each Holder (other than TPG) or in such other proportion as shall mutually be agreed to by all such selling ~~Holders~~Holders (excluding, for purposes of this clause (ii), TPG); provided, however, that the number of Registrable Securities ~~owned or~~ held by ~~the~~ such Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest ~~one hundred (100)~~ 100 shares.

Appears in 1 contract

Samples: Registration Rights Agreement (Icts International N V)

Inclusion. If, pursuant to Section 3.1, the 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 Section 3.1, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Company, subject only to the reasonable approval of the holders of a majority of Registrable Securities held by the Initiating ~~Holders~~Holders (with the Series D-1 Preferred Stock being subject to the Regulatory Voting Restriction for this purpose). In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section 3.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Section 3.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned or held by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, (a) subject to (b) below, that the number of Registrable Securities owned or held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting; and (b) if a Regulated Holder and its Transferees, individually or together, is deemed to be in control of the Company (as “control” is used for purposes of the BHCA) or believes in good faith, based on the advice of legal counsel, that it may be deemed to be in control of the Company (as “control” is used for purposes of the BHCA) or that it is not permitted to hold all or part of its shares of Series D-1 Preferred Stock or, if applicable, any other securities of the Company, under the relevant banking laws, regulations and agency interpretations and guidance, then, if requested by such Regulated Holder or Transferee, the Company will cooperate in good faith to provide the Regulated Holder with information relevant to its determination under this section and the Company will use its commercially reasonable efforts to cooperate with the Regulated Holder and its Transferees to facilitate the inclusion of that portion of its shares of Series D-1 Preferred Stock or any other securities of the Company then-held by the Regulated Holder and its Transferees, as applicable, in the underwriting necessary, as determined by the Regulated Holder and its Transferees in good faith, necessary to avoid the Regulated Holder and its Transferees being deemed to be in control of the Company (as “control” is used for purposes of the BHCA) or to permit the Regulated Holder and its Transferees to hold its remaining shares of Series D-1 Preferred Stock or any other securities of the Company then-held by the Regulated Holder under relevant banking laws, regulations and agency interpretations and guidance, provided, however, that, notwithstanding the foregoing, the total number of shares to be underwritten shall not exceed the limitation on the number of shares to be underwritten as advised by the managing underwriter(s). To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest ~~one hundred (100)~~ 100 shares.

Appears in 1 contract

Samples: Investors’ Rights Agreement (Turo Inc.)

Inclusion. If, pursuant to Section ~~3.1~~3.2 hereof, the 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 Section ~~3.1~~3.2 hereof, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the ~~Company~~Initiating Holders, subject only to the reasonable approval of the ~~holders of a majority of Registrable Securities held by the Initiating Holders~~Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section ~~3.4(e)~~3.5(f) hereof) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Section ~~3.3~~3.4, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned or held by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable Securities owned or held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.

Appears in 1 contract

Samples: Shareholders’ Agreement (LinkDoc Technology LTD)

Appears in 1 contract

Samples: Investors’ Rights Agreement (Berkeley Lights, Inc.)

Common use of Inclusion Clause in Contracts