Common use of Priority in Incidental Registrations Clause in Contracts

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 2 contracts

Samples: Registration Rights Agreement (Delco Remy International Inc), Registration Rights Agreement (Citicorp)

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Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a5.3(a) hereof involves an underwritten offering and the managing underwriter advises the Company IBC in writing writing, that, in its opinion, the total number of shares of Common Stock IBC Securities intended to be included in such registrationRegistration Statement exceeds the largest number of IBC Securities which can be sold without having an adverse effect on such offering, including the Registrable Securities requested price at which such securities can be sold or, if in a non-underwritten offering, IBC determines, in its reasonable discretion, to limit the number of securities to be included pursuant to this Section 3sold, exceeds (in either case, the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price"Marketable Number"), timing or distribution of such shares of Common Stock, then the Company shall IBC will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: Registration Statement (i) first, all of the shares IBC Securities IBC or the Person referred to in the first sentence of Common Stock that the Company Section 5.3(a)(i) proposes to sell for its own account, if any, (ii) second, all of the shares IBC Securities requested to be included by holders of Common Stock being registered by holder(s) of Registrable IBC Securities pursuant to a Demand Section 3 of the First Registration (as hereinafter defined)Rights Agreement, and (iii) third, the Registrable IBC Securities requested to be included by Xxxxxxx pursuant to Section 5.3(a) hereof and (iv) fourth, the securities requested to be included by other Persons (but if the number of securities to be registered pursuant to clause (iv) together with the number of securities to be included in such registration pursuant to clauses (i), (ii) and (iii) of this Section 5.3(b) exceeds the Marketable Number, the number of securities of Persons to be registered pursuant to clause (iv) shall be allocated pro rata among such Persons on the basis of the holder(s) relative number of Registrable IBC Securities each such Person has requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter definedregistration)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 2 contracts

Samples: Shareholder Agreement (Interstate Bakeries Corp/De/), Shareholder Agreement (Interstate Bakeries Corp/De/)

Priority in Incidental Registrations. (i) If a registration ------------------------------------ pursuant to this Section 3(a) 3 involves an underwritten offering (other than as set forth in Section 3(b)(ii) below) and the managing underwriter advises the Company Public in writing that, in its opinion, the total number of shares equity securities (including all Registrable Securities) which Public, the Holders and any other persons intend to include in such registration exceeds the largest number of Common Stock equity securities which can be sold without having an adverse effect on such offering, including the price at which such equity securities can be sold, the number of such equity securities to be included in such registrationregistration shall be reduced to such extent, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall and Public will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priorityequity securities as follows: (iA) first, all of the shares of Common Stock that the Company equity securities Public proposes to sell for its own account, if any, account in such registration and (iiB) second, all to the extent that the number of equity securities which Public proposes to sell for its own account pursuant to Section 3(a) hereof is less than the number of equity securities which Public has been advised can be sold in such offering without having the adverse effect referred to above, Public shall include in such registration the number of equity securities determined as follows: (i) no less than 75% of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) equity securities included in such registration shall be comprised of Registrable Securities requested to be included in such Incidental Registrationregistration by Blackstone and TCW and (ii) the Registrable Securities of each Holder (other than Blackstone and TCW) to be included in such registration shall equal the lesser of (A) 25% of such Holder's pro rata portion of the shares owned by all of the Company Stockholders (other than Blackstone and TCW) immediately after the Effective Time, and (B) the number of Registrable Securities requested to be included in such registration by such Holder. To the extent that shares the number of Common Stock Registrable Securities which Blackstone, TCW and the other Holders have requested to include is, in the aggregate, less than the number of equity securities which Public has been advised can be sold in such offering without having the adverse effect referred to above, then the number of such equity securities requested to be included in such registration by the Incidental Registration must holders thereof shall be allocated among the holders(s) limited to such extent and, subject to any rights of Registrable Securities pursuant to clause (iii) abovesuch holders, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based all such holders on the basis of the relative number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included thereinequity securities then held by each such holder; provided, however, that (other than with respect any such amount thereby allocated to any such holder that exceeds such holder's request shall be reallocated among the remaining requesting holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material like manner. After giving effect to the success of foregoing, any remaining capacity will be allocated first to Blackstone and TCW and thereafter to the offeringother Holders.

Appears in 2 contracts

Samples: Registration Rights Agreement (Ipcs Inc), Registration Rights Agreement (Airgate PCS Inc /De/)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing underwriter advises Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) that, in its opinion, the total number amount of shares of Common Stock securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, then the Company will be required to include in such registration, first, all the securities entitled to be sold pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including the Holders); second all Registrable Securities requested to be included pursuant to this Section 3, exceeds in the maximum number of shares of Common Stock specified Underwritten Offering by the managing underwriter that may Blackstone Investors and the Senior Managers and, to the extent not all such Registrable Securities can be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include included in such registration only such maximum Underwritten Offering, the number of Registrable Securities which, in to be included shall be allocated pro rata among the reasonable opinion of such underwriter or underwriters, can be sold in Blackstone Investors and the following order of priority: (i) first, all Senior Managers on the basis of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) number of Registrable Securities pursuant requested to be included in the Underwritten Offering by the Blackstone Investors and the Senior Managers or on such other basis as shall be agreed among the Blackstone Investors and the Management Representative (if the Senior Managers have requested Registrable Securities to be included in such Required Registration) (provided that, the provisions under this clause “second” shall have priority over the foregoing clause “first” if Blackstone gives notice to the Company that Blackstone is electing to have the applicable Underwritten Offering constitute a Demand Registration (as hereinafter definedRequired Registration), and (iii) ; third, the all Registrable Securities requested to be included in such Underwritten Offering by the other Holders and, to the extent not all such Registrable Securities can be included in such Underwritten Offering, the number of Registrable Securities to be included shall be allocated pro rata among such other Holders on the basis of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock Underwritten Offering by all such Holders and fourth, all other securities requested, in accordance with any registration rights which are granted in compliance with Section 6(a), to be included in such Underwritten Offering which are of the Incidental Registration must be allocated among same class as the holders(s) of Registrable Securities pursuant otherwise to clause (iii) abovebe included in such Required Registration and, to the extent not all such shares securities can be included in such Underwritten Offering, the number of securities to be included shall be allocated pro rata among the holders(s) holders thereof requesting inclusion in such Underwritten Offering on the basis of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have securities requested to be included thereinby all such holders; provided, however, that (other than with respect to holders in the event the Company will not, by virtue of -------- ------- this paragraph, include in any such registration all of the Registrable Securities that are of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within three days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, corresponding increase in the managing underwriter or underwriters may select shares for inclusion amount of Registrable Securities to be included in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 2 contracts

Samples: Registration Rights Agreement (New Skies Satellites Holdings Ltd.), Registration Rights Agreement (New Skies Satellites Holdings Ltd.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided. Notwithstanding the foregoing, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion inclusion, or exclude shares completely, in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis basis, or inclusion of such shares, would be material to the success of the offering.

Appears in 2 contracts

Samples: Registration Rights Agreement (Integrated Energy Technologies Inc), Registration Rights Agreement (Network Communications, Inc.)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and of the managing underwriter advises securities so being registered, whether or not for sale for the Company in writing thataccount of the Company, in its opinionto be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the total number Registrable Securities so requested to be registered for sale for the account of shares Holders of Common Stock Registrable Securities are also to be included in such underwritten offering, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company may include in such offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities and other securities of the Company that persons have requested to be included in such registration by (a) first decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, including to the extent necessary, decreasing the Registrable Securities requested to be included pursuant registered (pro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to this Section 3the filing of the registration statement with respect to such registration); provided, exceeds however, that the maximum number rights of shares Holders hereunder shall be subject to (i) the right of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Series A Persons requesting inclusion of such shares of Common Stock, then the Company shall include securities in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, to include all of the shares of Common Stock that the Company proposes securities requested to sell for its own account, if any, (ii) second, all of the shares of Common Stock being be registered by holder(s) such Series A Persons in such registration without reduction prior to the inclusion of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of any Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities registration pursuant to clause this Section 2.2., and (iiiii) abovethe rights of Series B Persons, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested Series C Persons, Series D Persons, Series E Persons, and Warrant Purchasers requesting registration to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion include securities in such Incidental Registration registration on a basis other than a pro rata basis if, with the Registrable Securities of Holders hereunder in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringsame manner as described in Section 2.1(c) hereof.

Appears in 2 contracts

Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc), Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a4(a) (other than a Demand Registration, S-3 Registration or Shelf Registration, it being understood the priority for such registrations is set forth in Section 5(e)) involves an underwritten offering Underwritten Offering and the managing underwriter advises or underwriters advise the Company in writing that, in its or their opinion, the total number of shares of Common Stock Securities to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 34, exceeds the maximum number of shares of Common Stock Securities specified by the managing underwriter or underwriters that may be distributed without materially and adversely affecting the price, timing or distribution of such shares of Common StockSecurities, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock Securities that the Company proposes to sell for its own account, if any, and (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(sInvestor(s) of Registrable Securities that are requested to be included in such Incidental Registration. To the extent that shares of Common Stock the Registrable Securities to be included in the Incidental Registration must be allocated among the holders(sInvestor(s) of Registrable Securities pursuant to clause (iiiii) above, such shares Registrable Securities shall be allocated pro rata among the holders(s) Investors based on the relative number of Registrable Securities based on the number of shares of Common Stock that then owned by such holders(s) of Registrable Securities shall have requested to be included thereinInvestors; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an the Incidental Registration is an underwritten offeringUnderwritten Offering, the managing underwriter or underwriters may select shares Registrable Securities for inclusion in such Incidental Registration from the Investors on a basis other than a such pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 2 contracts

Samples: Investors and Registration Rights Agreement (Edgen Group Inc.), Investors and Registration Rights Agreement (Edgen Group Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 2 involves an underwritten offering and the managing underwriter advises the Company Registrant in writing that, in its opinion, the total number and kind of shares of Common Stock securities requested to be included in such registrationregistration exceeds the number and kind which can be sold in such offering, including the Registrable Securities requested so as to be included pursuant likely to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting have a material adverse effect on the price, timing or distribution of the securities offered in such shares of Common Stockoffering as contemplated by the Registrant (other than the Registrable Securities), then the Company shall Registrant will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, securities all of the shares of Common Stock that securities the Company Registrant proposes to sell for its own account, if any, (ii"Registrant Securities") second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), plus such number and (iii) third, the Registrable Securities of the holder(s) kind of Registrable Securities requested to be included in such Incidental Registrationregistration by the selling Holder which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above. To the extent that shares of Common Stock The Registrable Securities to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares registration shall be allocated pro rata among the holders(s) of Registrable Securities based all requesting Holders on the basis of the relative number of shares of Common Stock that such holders(s) of Registrable Securities then held by each such Holder (provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the remaining requesting Holders in like manner). In the event the Registrant is faced with a conflict between its obligations under this Section 2 and pre-existing obligations to persons who are not Holders hereunder with respect to the priority of securities to be included in a registration pursuant to this Section 2, the Registrant shall have at such time endeavor to arrange with the Holder or Holders and such other persons to fairly allocate the shares of such securities to be sold by it, such Holder or Holders and such other persons pursuant to such registration; provided, that, if a registration pursuant to this Section 2 is effected pursuant to the demand registration rights of a third party with whom the Company has a contractual obligation, the number and kinds of securities requested to be included therein; providedby such third party shall first be included in such registration and the number and kind of securities requested to be included by the Holders, however, that (the Company and any other than with respect to holders of -------- ------- Registrable Securities that are persons entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in sell securities pursuant to such Incidental Registration registration shall then be included on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringbasis.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Fleet Boston Corp), Stock Purchase Agreement (North Fork Bancorporation Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing underwriter advises Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder requesting registration of Registrable Securities) on or before the date 5 days prior to the date then scheduled for such offering that, in its opinion, the total number amount of shares of Common Stock securities (including Registrable Securities) requested to be included in such registrationregistration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, unless the managing Underwriter shall otherwise specify (which specification may not adversely affect any Sponsor Member and any affiliated VCOC Stockholder relative to any other Sponsor Member and any affiliated VCOC Stockholder, as the case may be), the Company shall be required to include in such Required Registration first, all the securities entitled to be sold pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including the Holders), and second all Registrable Securities requested to be included pursuant to this Section 3, exceeds in the maximum number of shares of Common Stock specified Underwritten Offering by the managing underwriter that may Sponsor Members and VCOC Stockholders and, following the one-year anniversary of the Company's Initial Public Offering, Dr. Xxxxxxx Xxxxx and, to the extent not all such Registrable Securities can be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include included in such registration only such maximum Underwritten Offering, the number of Registrable Securities which, in to be included shall be allocated pro rata on the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all basis of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) number of Registrable Securities pursuant beneficially owned at that time by (x) all the Sponsor Members and their affiliated VCOC Stockholders requesting to a Demand Registration participate in the Underwritten Offering and (as hereinafter definedy) following the one-year anniversary of the Company's Initial Public Offering, Dr. Xxxxxxx Xxxxx (if requesting to participate in the Underwritten Offering), or on such other basis as shall be agreed among the Sponsor Members, Dr. Xxxxxxx Xxxxx (but only following the one-year anniversary of the Company's Initial Public Offering and (iiionly if requesting to participate in the Underwritten Offering) and the Majority Holders; third, the Registrable Securities of the holder(s) of all Registrable Securities requested to be included in such Incidental Registration. To Underwritten Offering by the Holders (other than Sponsor Members, any VCOC Stockholder and Nalco LLC) and, to the extent not all such Registrable Securities can be included in such Underwritten Offering, the number of Registrable Securities to be included shall be allocated pro rata on the basis of the number of Registrable Securities beneficially owned at that shares of Common Stock time by all the Holders (other than Sponsor Members, any VCOC Stockholder and Nalco LLC) requesting to participate in the Required Registration and fourth, all other securities requesting, in accordance with any registration rights which are granted in compliance with Section 6(a) or have been granted prior to the date hereof, to be included in such Required Registration which are of the Incidental Registration must be allocated among same class as the holders(s) of Registrable Securities pursuant and, to clause (iii) abovethe extent not all such securities can be included in such Required Registration, such shares the number of securities to be included shall be allocated pro rata among the holders(s) remaining holders thereof requesting inclusion in such Required Registration on the basis of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have securities requested to be included thereinby all such holders; provided, however, that (other than with respect to holders in the event the Company will not, by virtue of -------- ------- this paragraph, include in any such registration all of the Registrable Securities that are of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within 3 days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, corresponding increase in the managing underwriter or underwriters may select shares for inclusion amount of Registrable Securities to be included in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 2 contracts

Samples: Registration Rights Agreement (Nalco Holding CO), Registration Rights Agreement (Nalco Holding CO)

Priority in Incidental Registrations. If Notwithstanding any other ------------------------------------ provision of this Section 3, if a registration ------------------------------------ pursuant to this Section 3(a) 3 involves an underwritten offering and the managing underwriter representative of the underwriters advises the Company in writing that, in its opinionthat marketing factors require a limitation on the number of shares to be underwritten, the total Company may exclude all Registrable Securities from, or limit the number of Registrable Securities to be included in, the registration and underwriting. The Company may limit, to the extent so advised by the underwriters, the amount of securities to be included in the registration by the Company's stockholders (including the Holders). The Company shall so advise all holders of securities requesting registration, and the number of shares of Common Stock securities that are entitled to be included in the registration and underwriting shall be (i) allocated first to the Company for securities being sold for its own account, and thereafter (ii) shall be allocated pro rata among all such requesting Holders on the basis of the relative number of shares of Registrable Securities and other securities each Holder has requested to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included registration by other persons, which number, in the Incidental Registration must opinion of such underwriters, can be allocated among sold without having the holders(s) of Registrable Securities pursuant adverse effect referred to clause (iii) above, such shares shall amount to be allocated pro rata among all such requesting other persons on the holders(s) basis of the relative number of shares of Registrable Securities based on and other securities each such other person has requested to be included in such registration. If any person does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company or the underwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. If shares are so withdrawn from the registration or if the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders in such registration was previously reduced as a result of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offeringmarketing factors, the managing underwriter or underwriters may select Company shall then offer to all persons who have retained the right to include additional securities in the registration in an aggregate amount equal to the number of shares for so withdrawn, with such shares to be allocated among the persons requesting additional inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringaccordance with Section 2(g) hereof.

Appears in 2 contracts

Samples: Registration Rights Agreement (Depuy Inc), Registration Rights Agreement (Depuy Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing underwriter advises Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) that, in its opinion, the total number amount of shares of Common Stock securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, then the Company will be required to include in such registration, first, all the securities entitled to be sold pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including the Holders); second all Registrable Securities requested to be included pursuant to this Section 3, exceeds in the maximum number of shares of Common Stock specified Underwritten Offering by the managing underwriter that may Investor Members and Management Members and, to the extent not all such Registrable Securities can be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include included in such registration only such maximum Underwritten Offering, the number of Registrable Securities which, in to be included shall be allocated pro rata among such Members on the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all basis of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) number of Registrable Securities pursuant requested to be included in the Underwritten Offering by all the Investor Members and Management Members or on such other basis as shall be agreed among such Investor Members and the Management Representative (if the Management Members have requested Registrable Securities to be included in such Required Registration) (provided that, the provisions under this clause "second" shall have priority over the foregoing clause "first" if Blackstone gives notice to the Company that Blackstone is electing to have the applicable Underwritten Offering to constitute a Demand Registration (as hereinafter definedRequired Registration), and (iii) ; third, the all Registrable Securities requested to be included in such Underwritten Offering by the other Holders and, to the extent not all such Registrable Securities can be included in such Underwritten Offering, the number of Registrable Securities to be included shall be allocated pro rata among such other Holders on the basis of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock Underwritten Offering by all such Holders and fourth, all other securities requested, in accordance with any registration rights which are granted in compliance with Section 6(a), to be included in such Underwritten Offering which are of the Incidental Registration must be allocated among same class as the holders(s) of Registrable Securities pursuant otherwise to clause (iii) abovebe included in such Required Registration and, to the extent not all such shares securities can be included in such Underwritten Offering, the number of securities to be included shall be allocated pro rata among the holders(s) holders thereof requesting inclusion in such Underwritten Offering on the basis of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have securities requested to be included thereinby all such holders; provided, however, that (other than with respect to holders in the event the Company will not, by virtue of -------- ------- this paragraph, include in any such registration all of the Registrable Securities that are of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within three days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, corresponding increase in the managing underwriter or underwriters may select shares for inclusion amount of Registrable Securities to be included in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 2 contracts

Samples: Registration Rights Agreement (VHS of Anaheim Inc), Registration Rights Agreement (VHS Acquisition Subsidiary Number 8 Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 2 involves an underwritten offering and the managing underwriter in good faith advises the Company in writing that, in its opinion, the total number of shares of Common Stock securities which the Company, the Holders and any other Persons intend to be included include in such registration, registration exceeds the largest number of securities which can be sold in such offering without having an adverse effect on such offering (including the Registrable Securities requested to price at which such securities can be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stocksold), then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priorityregistration: (i) firstFIRST, all 100% of the shares of Common Stock that securities the Company proposes to sell for its own account, if any, ; and (ii) secondSECOND, all of the shares of Common Stock being registered by holder(s) such number of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, Shares which the Registrable Securities of the holder(s) of Registrable Securities Holders have requested to be included in such Incidental Registration. To registration and such number of securities which Other Holders have requested to be included in such registration which, in the extent that opinion of such managing underwriter, can be sold without having the adverse effect referred to above, such number of Registrable Shares and securities of Other Holders to be included on a pro rata basis among all requesting Holders and Other Holders on the basis of the relative number of shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Exchange Act) by such Holders and Other Holders, PROVIDED that if the number of Registrable Shares requested to be included in such registration by the Incidental Registration must be allocated among the holders(s) of Registrable Securities Holders pursuant to clause (iiiSection 2(a) hereof and permitted to be included in such registration by the Holders pursuant to this Section 2(b) exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such shares Registrable Shares to be included in such registration by the Holders shall be allocated pro rata among such Holders on the holders(s) basis of the relative number of Registrable Securities based on the number of shares of Common Stock that Shares each such holders(s) of Registrable Securities shall have Holder has requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifregistration; and (iii) THIRD, to the extent that the number of securities which are to be included in such registration pursuant to clauses (i) and (ii), in the reasonable aggregate, is less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, such number of other securities requested to be included in the offering for the account of any other Persons which, in the opinion of such underwriter or underwritersmanaging underwriter, selection on can be sold without having the adverse effect referred to above, such number to be allocated pro rata among all holders of such other securities on the basis would be material to the success of the offeringrelative number of such other securities each other person has requested to be included in such registration.

Appears in 2 contracts

Samples: Warrantholders Registration Rights Agreement (Burke Industries Inc /Ca/), Warrantholders Registration Rights Agreement (Burke Industries Inc /Ca/)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and of the managing underwriter advises securities so being registered, whether or not for sale for the Company in writing thataccount of the Company, in its opinionto be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the total number Registrable Securities so requested to be registered for sale for the account of shares Holders of Common Stock Registrable Securities are also to be included in such underwritten offering, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company may include in such offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities and other securities of the Company that persons have requested to be included in such registration by (a) first decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, including to the extent necessary, decreasing the Registrable Securities requested to be included pursuant registered (pro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to this Section 3the filing of the registration statement with respect to such registration); provided, exceeds however, that the maximum number rights of shares Holders hereunder shall be subject to (i) the right of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Series A Persons requesting inclusion of such shares of Common Stock, then the Company shall include securities in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, to include all of the shares of Common Stock that the Company proposes securities requested to sell for its own account, if any, (ii) second, all of the shares of Common Stock being be registered by holder(s) such Series A Persons in such registration without reduction prior to the inclusion of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of any Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities registration pursuant to clause this Section 2.2., and (iiiii) above, such shares shall be allocated pro rata among the holders(s) rights of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested Series B Persons requesting registration to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion include securities in such Incidental Registration registration on a basis other than a pro rata basis if, with the Registrable Securities of Holders hereunder in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringsame manner as described in Section 2.1(c) hereof.

Appears in 1 contract

Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)

Priority in Incidental Registrations. If (i) Subject to paragraph ------------------------------------ (ii) below, if a registration ------------------------------------ pursuant to this Section 3(a) 3 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares equity securities (including all Registrable Securities) which the Company, the Holders and any other persons intend to include in such registration exceeds the largest number of Common Stock securities which can be sold without reasonably expecting to have an adverse effect on such offering, including the price at which such securities can be sold, the number of such securities to be included in such registrationregistration shall be reduced to such extent, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then and the Company shall will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of prioritysecurities as follows: (iA) if such registration is initiated during the eighteen month period following an Initial Public Offering, (I) first, all of the shares of Common Stock that securities the Company proposes to sell for its own account, if anyaccount in such registration, (iiII) second, to the extent that the number of securities which the Company proposes to sell for its own account pursuant to Section 3(a) hereof is less than the number of equity securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, all Registrable Securities requested to be included in such registration by the Holders shall be limited to such extent and shall be allocated pro rata among such Holders on the basis of the shares of Common Stock being registered by holder(s) relative number of Registrable Securities pursuant then held by each such Holder, provided that any such amount thereby allocated to a Demand Registration (as hereinafter defined), any such Holder that exceeds such Holder's request shall be reallocated among the remaining requesting Holders in like manner and (iiiIII) third, to the extent that the number of equity securities which the Company proposes to sell for its own account and the Registrable Securities which the Holders have requested to be included in such registration pursuant to Section 3(a) hereof is, in the aggregate, less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such securities requested to be included in such registration by the holders thereof shall be limited to such extent and, subject to any rights of such holders, shall be allocated pro rata among all such holders on the basis of the holder(srelative number of such securities then held by each such holder; provided, that any such amount thereby allocated to any such holder that exceeds such holder's request shall be reallocated among the remaining requesting holders in like manner or (B) if such registration is initiated after the expiration of the eighteen month period following an Initial Public Offering, (I) first, all the securities the Company proposes to sell for its own account and (II) second, to the extent that the number of securities which the Company proposes to sell for its own account pursuant to Section 3(a) hereof is less than the number of equity securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the aggregate of the number of Registrable Securities requested to be included in such Incidental Registration. To registration by the extent that shares Holder and the number of Common Stock such securities requested to be included in the Incidental Registration must such registration by other holders shall be allocated among the holders(s) of Registrable Securities pursuant limited to clause (iii) abovesuch extent, such shares and shall be allocated pro rata among the holders(s) of Registrable Securities based Holder and all such holders on the basis of the relative number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included thereinsecurities then held by the Holder and each such holder; provided, however, that (other than with respect any such amount thereby allocated to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter each Holder or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on any such other basis would holder that exceeds such Holder's or such holder's request, respectively, shall be material to reallocated among the success of Holders and the offeringremaining requesting holders in like manner, as applicable.

Appears in 1 contract

Samples: Registration Rights Agreement (Ipcs Inc)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and of the managing underwriter advises securities so being registered, whether or not for sale for the Company in writing thataccount of the Company, in its opinionto be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the total number Registrable Securities so requested to be registered for sale for the account of shares Holders of Common Stock Registrable Securities are also to be included in such underwritten offering, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company may include in such offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities and other securities of the Company that persons have requested to be included in such registration by (a) first decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, including to the extent necessary, decreasing the Registrable Securities requested to be included pursuant registered (pro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to this Section 3the filing of the registration statement with respect to such registration); provided, exceeds however, that the maximum number rights of shares Holders hereunder shall be subject to (i) the right of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Series A Persons requesting inclusion of such shares of Common Stock, then the Company shall include securities in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, to include all of the shares of Common Stock that the Company proposes securities requested to sell for its own account, if any, (ii) second, all of the shares of Common Stock being be registered by holder(s) such Series A Persons in such registration without reduction prior to the inclusion of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of any Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities registration pursuant to clause this Section 2.2., and (iiiii) abovethe rights of Series B Persons, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested Series C Persons, Series D Persons, Series E Persons, Series F Persons, and Warrant Purchasers requesting registration to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion include securities in such Incidental Registration registration on a basis other than a pro rata basis if, with the Registrable Securities of Holders hereunder in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringsame manner as described in Section 2.1(c) hereof.

Appears in 1 contract

Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant the Company at any time proposes to register any of its equity securities under the Securities Act as contemplated by Section 3(a2.2(a) involves an underwritten offering above, the Company will, if requested by any holder of Registrable Securities as provided in said Section 2.2(a) and subject to the provisions of this Section 2.2(b), arrange for such underwriters to include all of the Registrable Securities to be offered and sold by such holder among the securities to be distributed by such underwriters. In the event that the managing underwriter advises of any such underwritten offering shall inform the Company and the holder or holders of Registrable Securities requesting the inclusion of their securities in such offering in writing that, in of its opinionreasonable and good faith belief that the size of the offering that such holders, the total number Company and/or any other securityholders intend to make is such that the success of shares the offering would be materially and adversely affected by the inclusion of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stockincluded, then the Company shall include in such offering only securities proposed to be sold by the Company for its own account and Registrable Securities and securities having registration only rights that are pari passu to those relating to the Registrable Securities (the "PARI PASSU SECURITIES"). The Company may include in such maximum offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can and Pari Passu Securities so proposed to be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities so requested to be included in such Incidental Registration. To offering (pro rata on the extent that shares basis of Common Stock the percentage of the securities, by number of shares, of the Company requested to be included in the Incidental Registration must offering by the holder or holders of such Registrable Securities and Pari Passu Securities) to the extent necessary to reduce the number of securities to be allocated among included in such offering to the holders(s) level recommended by the managing underwriter. If, prior to the effectiveness of any registration statement contemplated by this Section 2.2, the managing underwriter reasonably determines in good faith, and gives written notice to the holders of Registrable Securities pursuant requesting the inclusion of their securities in such offering, that in its opinion the underwriting cannot be achieved at a price acceptable to clause (iii) abovethe Company due to the size of the offering, such shares shall be allocated pro rata among the holders(s) Company may further decrease the number of Registrable Securities based on and Pari Passu Securities in the number of shares of Common Stock that such holders(s) manner described in the preceding sentence to the minimum extent necessary in order to achieve a price acceptable to the Company. The holder or holders of Registrable Securities shall have requested to be included therein; distributed by such underwriters shall be parties to the underwriting agreement between the Company and such underwriters and any necessary or appropriate custody agreements which are reasonably acceptable to such holders, shall execute appropriate powers of attorney which are reasonably acceptable to such holders, and shall take all such actions as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Securities, provided, however, that (i) such holder or holders of Registrable Securities participating in such registration shall not be required to make any representations or warranties other than with respect those relating solely to holders such holder, its Registrable Securities, and its intended method of -------- ------- distribution and (ii) the liability of each such holder to any underwriter under such underwriting agreement will be limited to liability arising from misstatements or omissions regarding such holder, its Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if and its intended method of distribution and any such liability shall not exceed an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material amount equal to the success of the offering.net proceeds such holder derives from such registration

Appears in 1 contract

Samples: Registration Rights Agreement (Magnum Hunter Resources Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) this SECTION 2 involves an underwritten public offering and the managing underwriter or underwriters in its judgment advises the Company in writing that, in its opinion, the total number of shares of Common Stock securities which the Company, the Holders and any other Persons intend to be included include in such registration, registration exceeds the largest number of securities which can be sold in such offering without having an adverse effect on such offering (including the Registrable Securities requested to price at which such securities can be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stocksold), then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) firstFIRST, all if the registration pursuant to this SECTION 2 was initiated by Other Holders exercising demand registration rights, 100% of the shares securities such Other Holders propose to sell (except to the extent the terms of Common Stock that such Other Holders' registration rights provide otherwise); (ii) SECOND, 100% of the securities the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and ; (iii) thirdTHIRD, to the Registrable Securities extent that the number of securities which such Other Holders exercising demand registration rights and the holder(s) Company propose to sell is, in the aggregate, less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, such number of Registrable Securities Shares which the Holders have requested to be included in such Incidental Registration. To registration and such number of securities which Other Holders have requested to be included in such registration, in each case pursuant to SECTION 2(a) or other piggyback or incidental registration rights and which, in the extent that opinion of such managing underwriter or underwriters, can be sold without having the adverse effect referred to above, such number of Registrable Shares and securities to be included on a pro rata basis among all requesting Holders and Other Holders on the basis of the relative number of shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Exchange Act) by such Holders and Other Holders (PROVIDED, that if the number of Registrable Shares requested to be included in such registration by the Incidental Registration must be allocated among the holders(s) of Registrable Securities Holders pursuant to clause (iiiSECTION 2(a) and permitted to be included in such registration by the Holders pursuant to this SECTION 2(b) exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such shares Registrable Shares to be included in such registration by the Holders shall be allocated pro rata among such Holders on the holders(s) basis of the relative number of Registrable Securities based on the number of shares of Common Stock that Shares each such holders(s) of Registrable Securities shall have Holder has requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifregistration); and (iv) FOURTH, to the extent that the number of securities which are to be included in such registration pursuant to clauses (i), (ii) and (iii) of this SECTION 2(b) is, in the reasonable aggregate, less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, such number of other securities requested to be included in the offering for the account of any other Persons which, in the opinion of such managing underwriter or underwriters, selection on can be sold without having the adverse effect referred to above, such number to be allocated pro rata among all holders of such other securities on the basis would be material to the success of the offeringrelative number of such other securities each other Person has requested to be included in such registration.

Appears in 1 contract

Samples: Registration Rights Agreement (Donnelley R H Inc)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and of the managing underwriter advises securities so being registered, whether or not for sale for the Company in writing thataccount of the Company, in its opinionto be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the total number Registrable Securities so requested to be registered for sale for the account of shares Holders of Common Stock Registrable Securities are also to be included in such underwritten offering, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company may include in such offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities and other securities of the Company that persons have requested to be included in such registration by (a) first decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, including to the extent necessary, decreasing the Registrable Securities requested to be included pursuant registered (pro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to this Section 3the filing of the registration statement with respect to such registration); provided, exceeds however, that the maximum number rights of shares Holders hereunder shall be subject to (i) the right of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Series A Persons requesting inclusion of such shares of Common Stock, then the Company shall include securities in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, to include all of the shares of Common Stock that the Company proposes securities requested to sell for its own account, if any, (ii) second, all of the shares of Common Stock being be registered by holder(s) such Series A Persons in such registration without reduction prior to the inclusion of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of any Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities registration pursuant to clause this Section 2.2., and (iiiii) abovethe rights of Series B Persons, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested Series C Persons, Series D Persons, Series F Persons, and Series G Persons requesting registration to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion include securities in such Incidental Registration registration on a basis other than a pro rata basis if, with the Registrable Securities of Holders hereunder in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringsame manner as described in Section 2.1(c) hereof.

Appears in 1 contract

Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering of the securities so being registered, whether or not for sale for the account of the Company, and (ii) the managing underwriter advises of such underwritten offering shall inform the Company in writing that, in and the holders of the Registrable Securities requesting such registration by letter of its opinion, belief that the total number of shares of Common Stock securities requested to be included in such registrationregistration exceeds the number which can be sold in (or during the time of) such offering, including then (A) in the case of an offering for the account of the Company or which was demanded by the holders of the Registrable Securities - July 1999 pursuant to the rights of the holders of the Registrable Securities - July 1999, registration for the Registrable Securities shall be cut back such that (i) no holder of Registrable Securities shall be entitled to participate in such underwritten public offering unless all shares of Common Stock proposed to be sold by the Company for its own account have been included in such underwritten public offering, and (ii) after the Company has included its own shares of Common Stock, the holders of Registrable Securities and the holders of other securities as to which the Company has granted registration rights including (without limitation) the Registrable Securities - July 1999 ("Other Registrable Securities"), including incidental registration rights, shall be entitled to include their Registrable Securities and Other Registrable Securities in an amount up to the amount that such managing underwriter or underwriters advise may be included therein (allocated among the holders of Registrable Securities and the holders of other Registrable Securities pro rata on the basis of the number of securities requested to be included pursuant therein by each such holder) and (B) in the case of an offering that was commenced as a result of the exercise of demand registration rights by Persons other than E-P or other holders of Registrable Securities, the Persons commencing such registration and the holders of Registrable Securities shall be entitled to this Section 3, exceeds include their Registrable Securities and Other Registrable Securities in an amount up to the maximum amount such managing underwriters or underwriters advise may be included therein (allocated among the persons commencing such registration and the holders of Registrable Securities pro rata on the basis of the number of shares of Common Stock specified securities requested to be so included therein by each such person or holder). If, however, the registration was initiated by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Company within one hundred twenty (120) days of such shares of Common Stocka requested registration and is in lieu thereof, then the Company shall include in such the registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To registration and shall decrease the number of securities proposed to be sold by the Company and to be included in such registration to the extent that shares necessary to reduce the number of Common Stock securities to be included in the Incidental Registration must be allocated among registration to the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, level recommended by the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringunderwriter.

Appears in 1 contract

Samples: Registration Rights Agreement (Isonics Corp)

Priority in Incidental Registrations. If a registration pursuant ------------------------------------ pursuant to Section 3(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(sholder(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Dri Acquisition LLC)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) this Article II involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock securities requested to be included in such registrationregistration exceeds the number which can be sold in such offering, including the Registrable Securities requested so as to be included pursuant likely to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting have an adverse effect on the price, timing or distribution of the securities offered in such shares of Common Stockoffering as contemplated by the Company (other than the Registrable Securities), then the Company shall will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all 100% of the shares of Common Stock that securities the Company proposes to sell for its own account, if anysell, (ii) second, all to the extent of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To registration pursuant to Article III which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, the number of Registrable Securities which the Holders have requested to be included in such registration, such amount to be allocated pro rata among all requesting Holders pursuant to Article III on the basis of the relative number of shares of Registrable Securities then held by each such Holder (provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the remaining requesting Holders in like manner) and (iii) third, to the extent of the number of Registrable Securities requested to be included in such registration pursuant to this Article II which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, the number of Registrable Securities which the Holders have requested to be included in such registration, such amount to be allocated pro rata among all requesting Holders on the basis of the relative number of shares of Registrable Securities then held by each such Holder (provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the remaining requesting Holders in like manner). The priority of registration of any shares being registered by the Company pursuant to the exercise of (a) "demand registration rights" granted following the date of this Agreement to holders of shares of Common Stock other than the Sponsor Stockholders or the Management Stockholders and Director Stockholders relative to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities other shares being registered pursuant to this Article II shall be on the basis provided in clause (ii) above and (b) "piggyback registration rights" granted following the date of this Agreement to holders of shares of Common Stock other than the Sponsor Stockholders or the Management Stockholders and Director Stockholders relative to other shares being registered pursuant to this Article II shall be pro rata with such shares on the basis provided in clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Westborn Service Center, Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) involves an underwritten offering and the managing underwriter advises of any underwritten offering shall inform the Company in writing that, in by letter of its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock belief that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) number or type of Registrable Securities requested to be included in such Incidental Registration. To registration would materially adversely affect such offering, then the Company will include in such registration, to the extent that shares of Common Stock the number and type which the Company is so advised can be sold in (or during the time of) such offering (i) first, all securities proposed by the Company to be sold for its own account, if any; (ii) second, and only if all the securities proposed by the Company to be sold for its own account have been so included, such Registrable Securities and securities of the Company requested for inclusion in such registration pursuant to the exercise of piggyback registration rights under Section 4(a) of the Nestle Registration Rights Agreement (the 'Nestle Securities'), pro rata among the holders of the Registrable Securities and Nestle Securities on the basis of the respective percentages of the total amount of securities requested to be so included by such holders which are represented by Registrable Securities, on the one hand, and Nestle Securities, on the other hand; and (iii) third, and only if all of the Registrable Securities and Nestle Securities have been included in such registration, any other securities of the Company requested to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included thereinregistration; provided, however, that (other than with respect if such registration was as a result of the exercise of a demand registration right pursuant to holders Section 3 of -------- ------- the Nestle Registration Rights Agreement, and the Nestle Holders have consented to the inclusion of Registrable Securities that are entitled in such offering, then the securities to make a Demand Registration Request be included in such registration shall be selected, after all 'Registrable Securities' (as hereinafter defined)defined in the Nestle Registration Rights Agreement) originally proposed to be included in such registration have been so included, (y) first, from the Registrable Securities and (z) second, and only if an Incidental Registration is an underwritten offeringall the Registrable Securities have been included in such registration, the managing underwriter or underwriters may select shares from any other securities eligible for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration."

Appears in 1 contract

Samples: Registration Rights Agreement (Nestle Holdings Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, the Company shall so advise each of the Holders as a part of the Company Notice. In such event, the right of each of the Holders to registration pursuant to this Section 2(b)(ii) 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. The Holder whose Registrable Securities are to be included in such registration shall (together with the Company) enter into an underwriting agreement in customary form with the representative of the Underwriter or Underwriters selected for underwriting by the Company. Notwithstanding any other provision of this Section 2(b), if the sole Underwriter or the lead managing underwriter advises Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing that, in its opinion, marketing factors require a limitation on the total number of securities to be underwritten, such Underwriter may (subject to the allocation priority set forth below) limit the number of Registrable Securities to be included in the registration and underwriting. The Company shall so advise all holders of Registrable Securities requesting registration, and the number of shares of Common Stock Registrable Securities that are entitled to be included in the registration and underwriting shall be allocated in the following manner: first, all the securities entitled to be sold pursuant to such registrationRegistration Statement without reference to the incidental registration rights of any holder (including Holders); second, including the all Registrable Securities requested to be included pursuant in the Underwritten Offering by Investments LP, to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may extent all such Registrable Securities can be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include included in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) firstUnderwritten Offering; third, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To Underwritten Offering by the Holders (other than Investments LP) and, to the extent that shares not all such Registrable Securities can be included in such Underwritten Offering, the number of Common Stock Registrable Securities to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among on the holders(s) basis of the number of Registrable Securities based on beneficially owned at that time by all the number of shares of Common Stock that such holders(sHolders (other than Investments LP) of Registrable Securities shall have requested requesting to be included thereinparticipate in the Required Registration; provided, however, that (other than with respect to holders in the event the Company will not, by virtue of -------- ------- this paragraph, include in any such registration all of the Registrable Securities that are of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within 3 days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, corresponding increase in the managing underwriter or underwriters may select shares for inclusion amount of Registrable Securities to be included in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 1 contract

Samples: Registration Rights Agreement (Verso Paper Corp.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a2(a)(i) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 32(a), exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without materially adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities Securities, which, in the reasonable opinion of such underwriter or underwritersunderwriter, can be sold in the following order of priority: (iA) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, ; (iiB) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), Registration; and (iiiC) third, the Registrable Securities of the holder(s) of Registrable Securities requested and permitted to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(sholder(s) of Registrable Securities pursuant to clause (iiiB) above, such shares units shall be allocated pro rata among the holders(sholder(s) of Registrable Securities based on the number of shares of Common Stock that such holders(sholder(s) of Registrable Securities shall have requested to be included therein; provided, however, . To the extent shares of that (other than with respect Common Stock to be included in the Incidental Registration must be allocated among the holders of -------- ------- Registrable Securities that are entitled pursuant to make a Demand Registration Request clause (as hereinafter defined)C) if an Incidental Registration is an underwritten offeringabove, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a units shall be allocated pro rata basis if, in among the reasonable opinion holder(s) of Registrable Securities based on the number of shares of Common Stock that such underwriter or underwriters, selection on such other basis would holder(s) of Registrable Securities shall have requested to be material to the success of the offeringincluded therein.

Appears in 1 contract

Samples: Registration Rights Agreement (Bio Key International Inc)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering of the securities so being registered, whether or not for sale for the account of the Company, and (ii) the managing underwriter advises of such underwritten offering shall inform the Company in writing that, in and the holders of the Registrable Securities requesting such registration by letter of its opinion, belief that the total number of shares of Common Stock securities requested to be included in such registrationregistration exceeds the number which can be sold in (or during the time of) such offering, including then (A) in the case of an offering for the account of the Company, registration for the Registrable Securities shall be cut back such that (1) no holder of Registrable Securities shall be entitled to participate in such underwritten public offering unless all shares of Common Stock proposed to be sold by the Company for its own account have been included in such underwritten public offering, and (2) after the Company has included its own shares of Common Stock, the holders of Registrable Securities and Persons other than Stockholders ("Other Persons") shall be entitled to include their ------------- Registrable Securities and Other Registrable Securities in an amount up to the amount that such managing underwriter or underwriters advise may be included therein (allocated among the holders of Registrable Securities and Other Registrable Securities pro rata on the basis of the number of Registrable Securities and Other Registrable Securities requested to be included pursuant therein by each such holder) and (B) in the case of an offering that was commenced as a result of the exercise of demand registration rights by Other Persons, the Other Persons commencing such registration and the holders of Registrable Securities shall be entitled to this Section 3include their Other Registrable Securities and Registrable Securities in an amount up to the amount such managing underwriters or underwriters advise may be included therein (allocated first to the Other Persons commencing such Registration and thereafter among the holders of Registrable Securities. If, exceeds however, the maximum number of shares of Common Stock specified registration was initiated by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Company within one hundred twenty (120) days of such shares of Common Stocka requested registration and is in lieu thereof, then the Company shall include in such the registration only such maximum number of all Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Other Registrable Securities requested to be included in such Incidental Registration. To registration and shall decrease the number of securities proposed to be sold by the Company and to be included in such registration to the extent that shares necessary to reduce the number of Common Stock securities to be included in the Incidental Registration must be allocated among registration to the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, level recommended by the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringunderwriter.

Appears in 1 contract

Samples: Registration Rights Agreement (Rf Monolithics Inc /De/)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a2(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 32, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities shares of Common Stock which, in the reasonable opinion of such underwriter or underwriters, can be sold sold, in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, unless such registration is commenced pursuant to exercise of a valid demand registration then all of the shares of Common Stock being registered by such holder shall be first and the Common Stock being registered by the Company for its own account shall be second, (ii) secondnext, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined)) or any other demand registration rights exercised after registration is commenced, and (iii) thirdnext, the Registrable Securities shares of the holder(s) of Registrable Securities Common Stock being registered by holders with registration rights requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be (allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated holders on a pro rata among basis based upon their respective percentage of ownership of the holders(s) of Registrable Securities based on the total number of shares of Common Stock that such holders(sthen outstanding), and (iv) next, the shares of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to Common Stock being registered by holders of -------- ------- Registrable Securities without registration rights that are entitled permitted to make participate in such Incidental Registration (allocated among such holders on a Demand Registration Request (as hereinafter definedpro rata basis based upon their respective percentage of ownership of the total number of shares of Common Stock then outstanding)) . Notwithstanding the foregoing, if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion inclusion, or exclude shares completely, in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis basis, or inclusion of such shares, would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Royster-Clark Nitrogen Realty LLC)

Priority in Incidental Registrations. If a registration pursuant ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing underwriter advises Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) on or before the date five (5) days prior to the date then scheduled for such offering that, in its opinion, the total amount of securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the success of the distribution of the securities being offered, then the Company will include in such registration first, all the securities entitled to be sold pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including Holders), and second, the amount of other securities (including Registrable Securities) requested to be included in such registration that the Company is so advised can be sold in (or during the time of) such offering, allocated, if necessary, pro rata among the holders (including the Holders) thereof requesting such registration on the basis of the number of shares the securities (including Registrable Securities) beneficially owned at the time by the holders (including Holders) requesting inclusion of Common Stock their securities; provided, however, that in the event the Company determines, by virtue of this paragraph, not to include in any such registration all of the Registrable Securities of any Holder requested to be included in such registration, including such Holder may, upon written notice to the Registrable Securities requested to be included pursuant to this Section 3, exceeds Company given within 3 days of the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution time such Holder first is notified of such shares of Common Stockmatter, then reduce the Company shall include in such registration only such maximum number amount of Registrable Securities whichit desires to have included in such registration, in whereupon only the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own accountRegistrable Securities, if any, (ii) second, all of it desires to have included will be so included and the shares of Common Stock being registered by holder(s) Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 1 contract

Samples: Registration Rights Agreement (Blackrock Inc /Ny)

Priority in Incidental Registrations. If a registration the Company at any time ------------------------------------ pursuant proposes to Section 3(a) involves an register any of its securities under the Securities Act as contemplated by this section 2.2 and such securities are to be distributed by or through one or more underwriters, the Company will, if requested by any holder of Registrable Securities use its best efforts to arrange for such underwriters to include all the Registrable Securities to be offered and sold by such holder among the securities to be distributed by such underwriters, provide that if the -------- managing underwriter of such underwritten offering shall inform the holders of the Registrable Securities requesting such registration and the managing underwriter advises holders of any Common Stock of the Company in writing thatwhich shall have exercised, in respect of such underwritten offering, registration rights comparable to the rights under this section 2.2, by letter of its opinion, the total belief that inclusion in such underwritten distribution of all or a specified number of such Registrable Securities or of such other securities of the Company so requested to be included would interfere with the successful marketing of the securities so being registered (other than such Registrable Securities and other Common Stock of the Company so requested to be included) by the underwriters (such writing to state the basis of such belief and the approximate number of such Registrable Securities and shares of Common Stock so requested to be included which may be included in such registrationunderwritten offering without such effect), including then the Company may, upon written notice to all holders of such Registrable Securities and of such other shares of Common Stock of the Company so requested to be included, exclude pro rata from such underwritten -------- offering (if and to the extent stated by such managing underwriter to be necessary to eliminate such effect) the number of such Registrable Securities and shares of such other Common Stock so requested to be included pursuant to this Section 3, exceeds the maximum registration of which shall have been requested by each holder of Registrable Securities and by the holders of such other Common Stock so that the resultant aggregate number of such Registrable Securities and of such other shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities so requested to be included which are included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares underwritten offering shall be allocated pro rata among equal to the holders(s) of Registrable Securities based on the approximate number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion stated in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringmanaging underwriter's letter.

Appears in 1 contract

Samples: Registration Rights Agreement (United Rentals North America Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant the Company at any time proposes to register any of its equity securities under the Securities Act as contemplated by Section 3(a2.2(a) involves an underwritten offering above, the Company will, if requested by any holder of Registrable Securities as provided in said Section 2.2(a) and subject to the provisions of this Section 2.2(b), arrange for such underwriters to include all of the Registrable Securities to be offered and sold by such holder among the securities to be distributed by such underwriters. In the event that the managing underwriter advises of any such underwritten offering shall inform the Company and the holder or holders of Registrable Securities requesting the inclusion of their securities in such offering in writing that, in of its opinionreasonable and good faith belief that the size of the offering that such holders, the total number Company and/or any other securityholders intend to make is such that the success of shares the offering would be materially and adversely affected by the inclusion of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stockincluded, then the Company shall include in such offering only securities proposed to be sold by the Company for its own account and Registrable Securities and securities having registration only rights that are pari passu to those relating to the Registrable Securities (the "PARI PASSU SECURITIES"). The Company may include in such maximum offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can and Pari Passu Securities so proposed to be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities so requested to be included in such Incidental Registration. To offering (pro rata on the extent that shares basis of Common Stock the percentage of the securities, by number of shares, of the Company requested to be included in the Incidental Registration must offering by the holder or holders of such Registrable Securities and Pari Passu Securities) to the extent necessary to reduce the number of securities to be allocated among included in such offering to the holders(s) level recommended by the managing underwriter. If, prior to the effectiveness of any registration statement contemplated by this Section 2.2, the managing underwriter reasonably determines in good faith, and gives written notice to the holders of Registrable Securities pursuant requesting the inclusion of their securities in such offering, that in its opinion the underwriting cannot be achieved at a price acceptable to clause (iii) abovethe Company due to the size of the offering, such shares shall be allocated pro rata among the holders(s) Company may further decrease the number of Registrable Securities based on and Pari Passu Securities in the number of shares of Common Stock that such holders(s) manner described in the preceding sentence to the minimum extent necessary in order to achieve a price acceptable to the Company. The holder or holders of Registrable Securities shall have requested to be included therein; distributed by such underwriters shall be parties to the underwriting agreement between the Company and such underwriters and any necessary or appropriate custody agreements which are reasonably acceptable to such holders, shall execute appropriate powers of attorney which are reasonably acceptable to such holders, and shall take all such actions as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Securities, provided, however, that (i) such holder or holders of Registrable Securities participating in such registration shall not be required to make any representations or warranties other than with respect those relating solely to holders such holder, its Registrable Securities, and its intended method of -------- ------- distribution and (ii) the liability of each such holder to any underwriter under such underwriting agreement will be limited to liability arising from misstatements or omissions regarding such holder, its Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if and its intended method of distribution and any such liability shall not exceed an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material amount equal to the success of the offeringnet proceeds such holder derives from such registration.

Appears in 1 contract

Samples: Registration Rights Agreement (Magnum Hunter Resources Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a3.1(b) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opiniongood faith view, the total number of shares of Common Stock equity securities (including all Registrable Securities) which the Company, the Stockholders and any other Persons intend to be included include in such registrationregistration exceeds the largest number of securities which can be sold without having a material adverse effect on such offering, including the price at which such Registrable Securities can be sold, the Company will include in such registration (A) first, all the Priority Securities to be sold for the Company's own account; (B) second, to the extent that the number of Priority Securities is less than the number of Registrable Securities which the underwriter has advised the Company can be sold in such offering without having the material adverse effect referred to above, as many Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in by the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities Stockholders pursuant to a Demand Registration (as hereinafter defined)Section 3.1(b)(i) hereof, and (iii) third, provided that if the Registrable Securities of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To registration by the extent that shares Stockholders pursuant to Section 3.1(b)(i) hereof, together with the number of Common Stock Priority Securities, exceeds the number which the Company has been advised can be sold in such offering without having the material adverse effect referred to above, the number of such Registrable Securities requested to be included in such registration by the Incidental Registration must be allocated among the holders(s) of Registrable Securities Stockholders pursuant to clause (iiiSection 3.1(b)(i) above, such shares hereof shall be allocated pro rata among all such requesting Stockholders on the holders(s) basis of the relative number of Registrable Securities based on owned by them; and (C) third, to the extent that the number of shares of Common Stock that such holders(sPriority Securities and Registrable Securities, as contemplated by (A) and (B) above, is less than the number of Registrable Securities shall have which the underwriter has advised the Company can be sold in such offering without having the material adverse effect referred to above, the number of equity securities requested to be included therein; provided, however, that (in such registration by Persons other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in Stockholders shall be allocated among such Incidental Registration other Persons on a basis other than a pro rata basis if, in as determined (or to be determined) by the reasonable opinion of such underwriter or underwriters, selection on Company and such other basis would be material to the success of the offeringPersons.

Appears in 1 contract

Samples: Indenture (Piedmont Management Co Inc)

Priority in Incidental Registrations. If a registration pursuant ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing underwriter advises Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Initial Holder of Registrable Securities requesting registration) on or before the date 5 days prior to the date then scheduled for such offering that, in its opinion, the total amount of securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, then the Company will include in such registration first, all the securities entitled to be sold pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including Holders), and second, the amount of other securities (including Registrable Securities) requested to be included in such registration that the Company is so advised can be sold in (or during the time of) such offering, allocated, if necessary, pro rata among the holders (including the Holders) thereof requesting such registration on the basis of the number of shares the securities (including Registrable Securities) beneficially owned at the time by the holders (including Holders) requesting inclusion of Common Stock their securities; provided, however, that in the event the Company will not, by virtue of this paragraph, include in any such registration all of the Registrable Securities of any Holder requested to be included in such registration, including such Holder may, upon written notice to the Registrable Securities requested to be included pursuant to this Section 3, exceeds Company given within 3 days of the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution time such Holder first is notified of such shares of Common Stockmatter, then reduce the Company shall include in such registration only such maximum number amount of Registrable Securities whichit desires to have included in such registration, in whereupon only the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own accountRegistrable Securities, if any, (ii) second, all of it desires to have included will be so included and the shares of Common Stock being registered by holder(s) Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 1 contract

Samples: Registration Rights Agreement (United States Filter Corp)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 1.2 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock (including all Registrable Securities) which the Company, Artal and its Assignees and any other stockholders propose to be included include in such registrationregistration exceeds the largest number of shares which can be sold without having an adverse effect on such offering, including the Registrable Securities requested price at which such shares can be sold, the Company will include in such registration up to be included pursuant to this Section 3, exceeds the such maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company initially proposes to sell for its own account, if anyor for the account of a demanding shareholder, pursuant to a demand registration right granted after the date hereof as the case may be, and (ii) second, to the extent that the number of shares referred to in clause (i) is less than the number of shares which the Company has been advised can be sold in such offering without having the adverse effect referred to above, all of the shares of Common Stock being registered by holder(s) of Registrable Securities requested to be included in such registration by Artal and its Assignees pursuant to a Demand Registration (as hereinafter definedSection 1.2(a), Bermore (to the extent permitted by and (iii) thirdaccordance with its incidental registration rights contained in Annex A to the Bermore Agreement), or by any other stockholder of securities entitled to elect and electing to register securities pursuant to any other registration rights 7 38 agreement to which the Registrable Securities of Company is a party, provided that if the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To registration by Artal, its Assignees, Bermore and such other stockholders, together with the extent that shares number of Common Stock securities which the Company proposes to sell for its own account to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities such registration pursuant to clause (iiii) of this Section exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such shares Registrable Securities requested to be included in such registration shall be limited to such extent and shall be allocated pro rata first among Artal and its Assignees requesting such registration pursuant to Section 1.2(a) and Bermore (to the holders(sextent permitted by and in accordance with its incidental registration rights contained in Annex A to the Bermore Agreement) of Registrable Securities based and second among all Other Holders on the basis of the relative number of shares of Common Stock that such holders(s) of Registrable Securities shall have securities requested to be included therein; providedin such registration, and provided further, however, that (the provisions regarding priorities contained in registration rights agreements to which stockholders other than with respect to holders Artal and its Assignees or Bermore are parties shall control the relative priorities among such other stockholders; provided further, that application of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifpreceding proviso shall not, in the reasonable opinion any manner, adversely affect or prejudice Artal's or Bermore's registration priority or other rights in respect of any such underwriter or underwriters, selection on such other basis would be material to the success of the offeringRegistration Statement.

Appears in 1 contract

Samples: Form of Stock Purchase Agreement (Keebler Foods Co)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a4(b) involves an underwritten offering and the managing underwriter advises the Company Montpelier in writing that, in its opiniongood faith view, the total number of shares of Common Stock equity securities (including all Registrable Securities) that Montpelier and the Shareholders intend to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only exceeds the largest number of securities that can be sold without having an adverse effect on such maximum offering, including the price at which such Registrable Securities can be sold, Montpelier will include in such registration (A) first, all the Priority Securities to be sold for Montpelier's own account; and (B) second, to the extent that the number of Priority Securities is less than the number of Registrable Securities which, in that the reasonable opinion of such underwriter or underwriters, has advised Montpelier can be sold in such offering without having the following order of priority: (i) firstadverse effect referred to above, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registrationregistration by the Shareholders pursuant to Section 4(b)(i), pro rata among all Shareholders requesting registration on the basis of the relative number of Registrable Securities then held by them. To the extent that shares of Common Stock Shareholders subject to be included in the Incidental Registration must be allocated among the holders(s) of such allocation may elect not to sell any Registrable Securities pursuant to clause (iii) abovethe registration statement. The Board may alter, such shares shall be allocated pro rata among amend or modify the holders(s) of Registrable Securities based on the number of shares of Common Stock allocation provisions contained in this paragraph if it determines in good faith that such holders(s) action would be likely to result in favorable tax treatment or to avoid unfavorable tax treatment of Registrable Securities shall have requested to be included thereinMontpelier or the Shareholders; provided, however, that (other than such action is applied uniformly with respect to holders similarly situated Shareholders and that no distinction is made based on citizenship or jurisdiction of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter incorporation or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material organization. Notwithstanding any provision hereof to the success contrary, Shareholders will have no rights under this Section 4(b) in respect of a public offering by Montpelier of its Common Shares (or any other securities or rights to acquire securities offered by Montpelier) made pursuant to a registration statement filed within one year of the offeringdate of this Agreement.

Appears in 1 contract

Samples: Shareholders Agreement (Montpelier Re Holdings LTD)

Priority in Incidental Registrations. If the managing underwriter for a registration ------------------------------------ pursuant to this Section 3(a) 3.6 that involves an underwritten offering and the managing underwriter advises the Company shall advise Holdings in writing that, in its opinion, the total number of shares of Common Stock securities requested to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, registration exceeds the maximum number of shares of Common Stock specified by (the managing underwriter "Section 3.6 Sale Number") that may can be distributed without adversely affecting the pricesold in an orderly manner in such offering within a price range acceptable to Holdings and Subsequent Grantees, timing or distribution of such shares of Common Stock, then the Company Holdings shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: offering (i) first, all the securities proposed to be registered by the Subsequent Grantee (including the Principal Stockholder or any of the shares of Common Stock that the Company proposes to sell for its own account, if anytheir Affiliates), (ii) second, to the extent that the Registrable Securities to be included by the Subsequent Grantees (including the Principal Stockholder or any of their Affiliates) are less than the Section 3.6 Sale Number, all of the shares of Common Stock being Registrable Securities sought to be registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined)Holdings, and (iii) third, to the extent that the sum of the Registrable Securities to be included by the Subsequent Grantees (including the Principal Stockholder or any of their Affiliates) and by Holdings are less than the holder(s) of Section 3.6 Sale Number, all Registrable Securities requested to be included in such Incidental Registration. To by the extent Principal Stockholder, the Investcorp Stockholders, the Trustee and by any other Person or Persons upon whom registration rights have been conferred; PROVIDED, HOWEVER, that shares if the sum of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) number of Registrable Securities to be registered pursuant to clause (iii) aboveabove after giving effect to clauses (i) and (ii) exceeds the Section 3.6 Sale Number, then the number of Registrable Securities requested by the Principal Stockholder, the Investcorp Stockholders, the Trustee and by any other Person or Persons upon whom registration rights have been conferred to be included in such shares registration shall be allocated pro rata among the holders(s) of Registrable Securities based Principal Stockholder, the Investcorp Stockholders, the Trustee and such other Person or Persons, on the basis of the relative number of shares of Common Stock that such holders(s) of Registrable Securities shall have the Principal Stockholder, the Investcorp Stockholders, the Trustee and each such Person has requested to be included thereinin such registration. If, as a result of the proration provisions of this subsection 3.6(d), the Principal Stockholder, the Investcorp Stockholders, or the Trustee shall not be entitled to include all Registrable Securities in a registration pursuant to this Section 3.6 that the Principal Stockholder, the Investcorp Stockholders, or the Trustee have requested be included, the Principal Stockholder, the Investcorp Stockholders, or the Trustee may make a Withdrawal Election; providedPROVIDED, howeverHOWEVER, that (other than with respect such Withdrawal Election shall be irrevocable and, after making a Withdrawal Election, the Principal Stockholder, the Investcorp Stockholders or the Trustee shall no longer have any right to holders of -------- ------- include Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of registration as to which such underwriter or underwriters, selection on such other basis would be material to the success of the offeringWithdrawal Election was made.

Appears in 1 contract

Samples: 1998 Stockholders' Agreement (Simmons Co /Ga/)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to ------------------------------------ this Section 3(a) 2.2 involves an underwritten offering of the securities so being registered, whether or not for sale for the account of the Company, and (ii) the managing underwriter advises of such underwritten offering shall inform the Company in writing that, in and the holders of the Registrable Securities requesting such registration by letter of its opinion, belief that the total number of shares of Common Stock securities requested to be included in such registrationregistration exceeds the number which can be sold in (or during the time of) such offering, including then (A) in the case of an offering for the account of the Company, registration for the Registrable Securities shall be cut back such that (i) no holder of Registrable Securities shall be entitled to participate in such underwritten public offering unless all shares of Common Stock proposed to be sold by the Company for its own account have been included in such underwritten public offering, and (ii) after the Company has included its own shares of Common Stock, the holders of Registrable Securities and the holders of other securities as to which the Company has granted registration rights ("Other Registrable Securities"), including incidental registration rights, shall be entitled to include their Registrable Securities and Other Registrable Securities in an amount up to the amount that such managing underwriter or underwriters advise may be included therein (allocated among the holders of Registrable Securities and the holders of other Registrable Securities pro rata on the basis of the number of securities requested to be included pursuant therein by each such holder) and (B) in the case of an offering that was commenced as a result of the exercise of demand registration rights by Persons other than Stockholders, the Persons commencing such registration and the holders of Registrable Securities shall be entitled to this Section 3, exceeds include their Registrable Securities and Other Registrable securities in an amount up to the maximum amount such managing underwriters or underwriters advise may be included therein (allocated among the persons commencing such registration and the holders of Registrable Securities pro rate on the basis of the number of shares of Common Stock specified securities requested to be so included therein by each such person or holder). If, however, the registration was initiated by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Company within one hundred twenty (120) days of such shares of Common Stocka requested registration and is in lieu thereof, then the Company shall include in such the registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To registration and shall decrease the number of securities proposed to be sold by the Company and to be included in such registration to the extent that shares necessary to reduce the number of Common Stock securities to be included in the Incidental Registration must be allocated among registration to the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, level recommended by the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringunderwriter.

Appears in 1 contract

Samples: Registration Rights Agreement (Medjet Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing underwriter advises Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) on or before the date five days prior to the date of pricing of for such offering that, in its opinion, the total number amount of shares of Common Stock securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, then the Company will be required to include in such registration, including first, all the securities entitled to be sold pursuant to such Registration Statement by the Company; second all Registrable Securities requested to be included pursuant to this Section 3, exceeds in the maximum number of shares of Common Stock specified Underwritten Offering by the managing underwriter that may Investor Members and, to the extent not all such Registrable Securities can be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include included in such registration only such maximum Underwritten Offering, the number of Registrable Securities which, in to be included shall be allocated pro rata on the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all basis of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) number of Registrable Securities pursuant requested to a Demand Registration (be included by all the Investor Members requesting to participate in the Underwritten Offering or on such other basis as hereinafter defined), and (iii) shall be agreed among such Investor Members; third, the all Registrable Securities requested to be included in such Underwritten Offering by the other Holders and, to the extent not all such Registrable Securities can be included in such Underwritten Offering, the number of Registrable Securities to be included shall be allocated pro rata on the basis of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock Underwritten Offering by all such Holders and fourth, all other securities requested, in accordance with any registration rights which are granted in compliance with Section 6(a), to be included in such Underwritten Offering which are of the Incidental Registration must be allocated among same class as the holders(s) of Registrable Securities pursuant and, to clause (iii) abovethe extent not all such securities can be included in such Underwritten Offering, such shares the number of securities to be included shall be allocated pro rata among the holders(s) remaining holders thereof requesting inclusion in such Underwritten Offering on the basis of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have securities requested to be included thereinin such Underwritten Offering by all such holders; provided, however, that (other than with respect to holders in the event the Company will not, by virtue of -------- ------- this paragraph, include in any such registration all of the Registrable Securities that are of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within three days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, corresponding increase in the managing underwriter or underwriters may select shares for inclusion amount of Registrable Securities to be included in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 1 contract

Samples: Registration Rights Agreement (Foundation Coal Holdings, Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a4(a) (other than a Demand Registration or S-3 Registration, it being understood the priority for such registrations is set forth in Section 5(d)) involves an underwritten offering Underwritten Offering and the managing underwriter advises or underwriters advise the Company in writing that, in its or their opinion, the total number of shares of Common Stock Securities to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 34, exceeds the maximum number of shares of Common Stock Securities specified by the managing underwriter or underwriters that may be distributed without materially and adversely affecting the price, timing or distribution of such shares of Common StockSecurities, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock Securities that the Company proposes to sell for its own account, if any, and (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(sInvestor(s) of Registrable Securities that are requested to be included in such Incidental Registration. To the extent that shares of Common Stock the Registrable Securities to be included in the Incidental Registration must be allocated among the holders(sInvestor(s) of Registrable Securities pursuant to clause (iiiii) above, such shares Registrable Securities shall be allocated pro rata among the holders(s) Investors based on the relative number of Registrable Securities based on the number of shares of Common Stock that then owned by such holders(s) of Registrable Securities shall have requested to be included thereinInvestors; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an the Incidental Registration is an underwritten offeringUnderwritten Offering, the managing underwriter or underwriters may select shares Registrable Securities for inclusion in such Incidental Registration from the Investors on a basis other than a such pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 1 contract

Samples: Investors and Registration Rights Agreement (Edgen Group Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) involves an underwritten offering Underwritten Offering and the managing underwriter advises or underwriters advise the Company in writing that, in its or their opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter or underwriters that may be distributed without materially and adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all the Registrable Securities of ValueAct Capital and any ValueAct Capital Affiliates (as defined in the Securities Holders Agreement) and the Registrable Securities of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant Management Investors and their Permitted Transferees that are requested to a Demand Registration (as hereinafter defined)be included in such Incidental Registration, and (iii) third, the Registrable Securities of the holder(s) any other holder of Registrable Securities that are requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(sholder(s) of Registrable Securities pursuant to clause clauses (ii) and (iii) above, such shares shall be allocated pro rata among the holders(sapplicable holder(s) of Registrable Securities based on the number of shares of Common Stock that such holders(sholder(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Matrix Geophysical, Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a2(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 32, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, ; (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), Registration; and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided. Notwithstanding the foregoing, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion inclusion, or exclude shares completely, in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis basis, or inclusion of such shares, would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Fifty Three Dredging Corp)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant the Company at any time proposes to register any of its securities under the Securities Act as contemplated by this Section 3(a) involves an underwritten offering 2.2 and such securities are to be distributed by or through one or more underwriters, the Company will, if requested by any holder of Registrable Securities use commercially reasonable efforts to arrange for such underwriters to include all the Registrable Securities to be offered and sold by such holder among the securities to be distributed by such underwriters, PROVIDED that if the managing underwriter advises of such underwritten offering shall inform the holders of the Registrable Securities requesting such registration the holders of any Common Stock or other securities of the Company in writing thatwhich shall have exercised, in respect of such underwritten offering, registration rights comparable to the rights under this Section 2.2, by letter of its opinion, the total belief that inclusion in such underwritten distribution of all or a specified number of such Registrable Securities or of such other securities of the Company so requested to be included would interfere with the successful marketing of the securities so being registered (other than such Registrable Securities, Common Stock or other securities of the Company so requested to be included) by the underwriters (such writing to state the basis of such belief and the approximate number of such Registrable Securities, shares of Common Stock or other securities of the Company so requested to be included which may be included in such registrationunderwritten offering without such effect), including then the Company may, upon written notice to all holders of such Registrable Securities Securities, and holders of Common Stock or other securities of the Company so requested to be included, exclude pro rata from such underwritten offering (if and to the extent stated by such managing underwriter to be necessary to eliminate such effect) the number of such Registrable Securities, and shares of such Common Stock or other securities of the Company so requested to be included pursuant to this Section 3the registration of which shall have been requested by each holder of Registrable Securities, exceeds and by the maximum holders of such Common Stock or other securities of the Company so that the resultant aggregate number of such Registrable Securities and of such other shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution other securities of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities so requested to be included which are included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares underwritten offering shall be allocated pro rata among equal to the holders(s) of Registrable Securities based on the approximate number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion stated in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringmanaging underwriter's letter.

Appears in 1 contract

Samples: Registration Rights Agreement (Franklin Capital Corp)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and of the managing underwriter advises securities so being registered, whether or not for sale for the Company in writing thataccount of the Company, in its opinionto be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the total number Registrable Securities so requested to be registered for sale for the account of shares Holders of Common Stock Registrable Securities are also to be included in such underwritten offering, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company may include in such offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities and other securities of the Company that persons have requested to be included in such registration by (a) first decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, including to the extent necessary, decreasing the Registrable Securities requested to be included pursuant registered (pro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to this Section 3the filing of the registration statement with respect to such registration); provided, exceeds however, that the maximum number rights of shares Holders hereunder shall be subject to (i) the right of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Series A Persons requesting inclusion of such shares of Common Stock, then the Company shall include securities in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, to include all of the shares of Common Stock that the Company proposes securities requested to sell for its own account, if any, (ii) second, all of the shares of Common Stock being be registered by holder(s) such Series A Persons in such registration without reduction prior to the inclusion of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of any Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities registration pursuant to clause this Section 2.2., and (iiiii) abovethe rights of Series B Persons, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested Series C Persons, Series D Persons, Series E Persons, Series F Persons, Series G Persons, and Series E Warrant Purchasers requesting registration to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion include securities in such Incidental Registration registration on a basis other than a pro rata basis if, with the Registrable Securities of Holders hereunder in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringsame manner as described in Section 2.1(c) hereof.

Appears in 1 contract

Samples: Series H Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of Wyndham, and the sole Under writer or the lead managing underwriter advises Underwriter, as the Company case may be, of such Underwritten Offering shall advise Wyndham in writing (with a copy to each Initial Holder of Registrable Securities requesting registration) on or before the date 5 days prior to the date then scheduled for such offering that, in its opinion, the total amount of securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, then Wyndham will include in such registration: first, all the securities entitled to be sold pursuant to such Registration Statement without reference to the incidental registra tion rights of any holder (including the Holders), and second, the amount of other securities (including Registrable Securities) requested to be included in such registra tion that Wyndham is so advised can be sold in (or during the time of) such offering, allocated, if necessary, pro rata among the holders (including the Holders) thereof requesting such registration on the basis of the number of shares the securities (including Registrable Securities) beneficially owned at the time by the holders (including the Holders) requesting inclusion of Common Stock their securities; provided, however, that in the event Wyndham will not, by virtue of this paragraph, include in any such registration all of the Registrable Securities of any Holder requested to be included in such registration, including such Holder may, upon written notice to Wyndham given within 3 days of the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution time such Holder first is notified of such shares of Common Stockmatter, then reduce the Company shall include in such registration only such maximum number amount of Registrable Securities whichit desires to have included in such registration, in whereupon only the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own accountRegistrable Securities, if any, (ii) second, all of it desires to have included will be so included and the shares of Common Stock being registered by holder(s) Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 1 contract

Samples: Registration Rights Agreement (Paine Webber Capital Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 1.2 involves an underwritten offering offering, and the managing or lead underwriter advises or underwriters shall advise the Company in writing (a copy of which shall be provided by the Company to each Person requesting registration of Eligible Securities or other securities of the Company), that, in its or their opinion, the total number of shares securities requested and otherwise proposed to be included in such registration exceeds the number that can be sold in such offering within a price range acceptable to the Company, the Company shall include in such registration, up to the number of Common Stock securities that the Company is so advised can be sold in such offering, (i) if the registration is a primary registration on behalf of the Company, (x) first, the securities proposed to be included by the Company and (y) second, the Eligible Securities requested to be included in such registration by the Selling Stockholders and the securities of other Persons requested to be included in such registration, including each pro rata in accordance with the Registrable number of securities proposed to be included by such other Persons and the number of Eligible Securities so requested to be included, respectively; and (ii) if the registration is a secondary registration on behalf of a Person or Persons other than the Company or a holder of Eligible Securities, (x) first, the securities proposed to be included pursuant to this Section 3by such other Person or Persons (unless, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in have negotiated an equal or better priority with such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter Person or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if anyPersons), (iiy) second, all the securities of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), Company and (iii) third, the Registrable Securities of the holder(s) of Registrable Eligible Securities requested to be included in such Incidental Registration. To registration by the extent that shares Selling Stockholders, each pro rata in accordance with the number of Common Stock securities proposed to be registered by the Company and the number of Eligible Securities so requested to be included, respectively (unless the Company has negotiated an equal or better priority with such other Person or Persons, in which case the securities proposed to be included by the Company shall have higher priority than the Eligible Securities proposed to be included by the Selling Shareholders), and (z) third, the securities of any other Persons requested to be included in such registration in accordance with the Incidental Registration must be allocated among rights contained in the holders(s) respective agreements into which such Persons and the Company have entered. Notwithstanding the aforesaid, if at any time the Company proposes to effect a registration under this Section 1.2 the Selling Stockholders are entitled to effect a disposition of Registrable Eligible Securities pursuant to clause Rule 144(k) (iiior any successor provision) aboveunder the Securities Act, such shares the aforesaid priorities shall be allocated pro rata among changed so that the holders(s) of Registrable Eligible Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested proposed to be included therein; provided, however, that (other than with respect by the Selling Stockholders shall have the lowest priority of all securities proposed to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion be registered in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 1 contract

Samples: Registration Rights Agreement (Deutsche Telekom Ag)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 3 involves an underwritten offering by Del Monte (as described in Section 3(a)(ii)) and the managing underwriter with respect to such offering advises the Company in writing Del Monte that, in its opinion, the total number of shares of Common Stock securities requested to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, registration exceeds the maximum largest number of shares securities which can be sold in such offering without a reasonable likelihood of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stockthe securities being offered, then the Company shall Del Monte will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company securities Del Monte initially proposes to sell for its own accountaccount if Del Monte initiates such registration or for the account of any stockholder pursuant to any contractual requirement to register securities (unless such stockholder is exercising incidental registration rights subject to a proration provision similar to the provisions set forth in this Section 3(b) or demand registration rights subject to a proration provision similar to the provisions applicable to a Demand Party as set forth in Section 2(d) hereof, if anyin which case the provisions of the following clause (ii) shall apply to the securities of such stockholder), (ii) second, to the extent that the number of securities referred to in clause (i) is less than the number of securities which Del Monte has been advised can be sold in such offering without having the adverse effect referred to above, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To registration by the extent Holders pursuant to Section 3(a), all securities of the class then being registered ("Other Registrable Securities") requested to be included by any holder (each, an "Other Holder") of Other Registrable Securities pursuant to any similar registration rights agreement and, if Del Monte does not initiate the registration, securities of the class then being registered which Del Monte proposes to sell for its own account ("Company Securities"), provided, that shares if the number of Common Stock Registrable Securities, Other Registrable Securities and Company Securities so requested to be included in such registration, together with the Incidental Registration must number of securities to be allocated among the holders(s) of Registrable Securities included in such registration pursuant to clause (iiii) of this Section, exceeds the number which Del Monte has been advised can be sold in such offering without having the adverse effect referred to above, the number of such shares Registrable Securities, Other Registrable Securities and Company Securities requested to be included in such registration by the Holders pursuant to Section 3(a), the Other Holders pursuant to any similar registration rights agreement and Del Monte shall be limited to such extent and shall be allocated pro rata among the holders(s(A) of Registrable Securities based all Holders requesting such registration pursuant to Section 3(a), (B) all Other Holders requesting such registration pursuant to any similar registration rights agreement and (C) Del Monte, on the basis of the relative number of shares of Common Stock that such holders(s) of Registrable Securities shall have securities requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 1 contract

Samples: Stockholder Rights Agreement (Del Monte Foods Co)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock or Preferred Stock, as the case may be, to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock or Preferred Stock, as the case may be, specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, or Preferred Stock, as the case may be, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, and (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the other holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock or Preferred Stock, as the case may be, to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iiiii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock or Preferred Stock, as the case may be, that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Mediq Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to which this Section 3(a) 3 applies involves an underwritten offering and the managing underwriter advises the Company Issuer in writing that, in its opinion, the total number of equity securities (including all Registrable Securities) which Issuer, the Holders and any other persons intend to include in such registration exceeds the largest number of shares (such amount, the "Maximum Shares" for purposes of Common Stock this Section 3(b)) which can be sold without having an adverse effect on such offering, including the price at which such equity securities can be sold, the number of such equity securities to be included in such registrationregistration shall be reduced, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall and Issuer will include in such registration only such a maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priorityequity securities as follows: (iA) first, all such number of the shares of Common Stock that the Company which Issuer proposes to sell for its own account, if any, account in such registration; (iiB) second, all of to the extent the Maximum Shares exceeds the shares allocated to the first priority, such number of Common Stock being registered shares as are requested for inclusion therein by holder(s) the Holders of Registrable Securities pursuant in accordance with the priorities and allocations set forth in Section 2(e)(i) (but using the Section 3 Maximum Shares amount) (provided, however, that, in the event that such registration is one in which one or more of the 1818 RRA Parties are also entitled to a Demand Registration (as hereinafter defined)incidental registration rights, such excess shall be allocated between the 1818 RRA Parties so entitled, on the one hand, and (iii) third, the Registrable Securities of the holder(s) Holders of Registrable Securities requested to be included in such Incidental Registration. To hereunder, on the extent that shares other hand, on the basis of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that requested for (and so entitled to) inclusion in such holders(s) registration, with the sub-allocation to and among the 1818 RRA Parties otherwise governed by the 1818 RRA and the sub-allocation to and among the Holders of Registrable Securities hereunder determined in accordance with the priorities and allocations set forth in Section 2(e)(i) (but using the Section 3 Maximum Shares amount)); and (C) third, to the extent the Maximum Shares exceed the shares allocated to the first and second priorities, such excess will be allocated in accordance with Section 2(e)(ii) (but using the Section 3 Maximum Shares amount). It is understood and agreed that Holders under this Agreement will have no right to participate in any demand or shelf registration under the 1818 RRA, and the 1818 RRA Parties shall have requested no right to be included therein; provided, however, that (other than with respect participate in any registration pursuant to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringSection 2 hereof.

Appears in 1 contract

Samples: Registration Rights Agreement (Us Unwired Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and the managing underwriter Underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock securities (including all Registrable Securities) which the Company, the Holders and any other Persons propose to be included include in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, registration exceeds the maximum number which can be sold in such offering without a reasonable likelihood of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stockthe securities being offered, then the Company shall will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all the securities the Company initially proposes to sell for its own account if the Company initiates such Incidental Registration or for the account of any security holder pursuant to any contractual requirement to register securities (unless such holder is exercising incidental registration rights subject to a proration provision similar to the provisions set forth in this Section 2.2(b) or demand registration rights subject to a proration provision similar to the provisions applicable to a Demanding Party as set forth in Section 2.1(c) hereof, in which case the provisions of the shares following clause (ii) shall apply to the securities of Common Stock such holder), (ii) second, to the extent that the number of securities referred to in clause (i) is less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, all Registrable Securities requested to be included in such registration by the Holders pursuant to Section 2.2(a) and all securities of the class then being registered ("Other Registrable Securities") requested to be included by any holder (each, an "Other Holder") of Other Registrable Securities pursuant to any similar registration rights agreement, provided, that if the number of Registrable Securities and Other Registrable Securities so requested to be included in such registration, together with the number of securities to be included in such registration pursuant to clause (i) of this Section, exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such Registrable Securities and Other Registrable Securities requested to be included in such registration by the Holders pursuant to Section 2.2(a) and the Other Holders pursuant to any similar registration rights agreement shall be limited to such extent and shall be allocated pro rata among (A) all Holders requesting such registration pursuant to Section 2.2(a) and (B) all Other Holders requesting such registration pursuant to any similar registration rights agreement on the basis of the relative number of securities requested to be included in such registration, and (iii) third, if the Company does not initiate the Incidental Registration, to the extent the number of securities referred to in clauses (i) and (ii) is less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, securities of the class then being registered the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant account up to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifsecurities that, in the reasonable opinion of the managing Underwriter, can be sold without having such underwriter or underwriters, selection on such other basis would be material to the success of the offeringadverse effect.

Appears in 1 contract

Samples: Registration Rights Agreement (Gutbusters Pty LTD)

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Priority in Incidental Registrations. If a registration pursuant ------------------------------------ pursuant to Section 3(a) involves an underwritten offering and the managing underwriter (or underwriters) advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(sholder(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(sholder(s) of Registrable Securities based on the number of shares of Common Stock that such holders(sholder(s) of Registrable Securities shall have requested to be included therein; provided, -------- however, that (other than with respect to holders of -------- ------- Registrable Securities that ------- are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement for Common Stock (Delco Remy International Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and the managing underwriter Underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock securities (including all Registrable Securities) which the Company, the Holders and any other Persons propose to be included include in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, registration exceeds the maximum number which can be sold in such offering without a reasonable likelihood of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stockthe securities being offered, then the Company shall will include in such registration only (i) FIRST, all the securities the Company initially proposes to sell for its own account if the Company initiates such maximum Incidental Registration or for the account of any security holder pursuant to any contractual requirement to register securities (unless such holder is exercising incidental registration rights subject to a proration provision similar to the provisions set forth in this Section 2.2(b) or demand registration rights subject to a proration provision similar to the provisions applicable to a Demanding Party as set forth in Section 2.1(c) hereof, in which case the provisions of the following clause (ii) shall apply to the securities of such holder), (ii) SECOND, to the extent that the number of securities referred to in clause (i) is less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, all Registrable Securities requested to be included in such registration by the Holders pursuant to Section 2.2(a) and all securities of the class then being registered ("OTHER REGISTRABLE SECURITIES") requested to be included by any holder (each, an "OTHER HOLDER") of Other Registrable Securities pursuant to any similar registration rights agreement, PROVIDED, that if the number of Registrable Securities whichand Other Registrable Securities so requested to be included in such registration, together with the number of securities to be included in such registration pursuant to clause (i) of this Section, exceeds the reasonable opinion of such underwriter or underwriters, number which the Company has been advised can be sold in such offering without having the following order adverse effect referred to above, the number of priority: such Registrable Securities and Other Registrable Securities requested to be included in such registration by the Holders pursuant to Section 2.2(a) and the Other Holders pursuant to any similar registration rights agreement shall be limited to such extent and shall be allocated PRO RATA among (A) all Holders requesting such registration pursuant to Section 2.2(a) and (B) all Other Holders requesting such registration pursuant to any similar registration rights agreement on the basis of the relative number of securities requested to be included in such registration, and (iii) THIRD, if the Company does not initiate the Incidental Registration, to the extent the number of securities referred to in clauses (i) firstand (ii) is less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, all securities of the shares of Common Stock that class then being registered the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant account up to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifsecurities that, in the reasonable opinion of the managing Underwriter, can be sold without having such underwriter or underwriters, selection on such other basis would be material to the success of the offeringadverse effect.

Appears in 1 contract

Samples: Registration Rights Agreement (Weight Watchers International Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering offering, and the managing underwriter advises shall advise the Company in writing (with a copy to the Participating Holders), that, in its opinion, the total number of shares of Common Stock securities requested and otherwise proposed to be included in such registration exceeds the number which can be sold in such offering within a price range acceptable to the Company, the Company will include in such registration, including to the extent of the number which the Company is so advised can be sold in such offering (1) if the registration is a primary registration on behalf of the Company, first, securities of the Company proposed by the Company to be sold for its own account; second, securities of the Existing Rights Holders and the Warrant Rights Holders requested to be included pursuant to the exercise of the piggyback registration rights granted to such Existing Rights Holders and Warrant Rights Holders, and third, Registrable Securities of the Participating Holders (other than the Existing Rights Holders and the Warrant Rights Holders ), pro rata among such Participating Holders on the basis of the relative number of Registrable Securities each Participating Holder beneficially owns, and (2) if the registration is a registration on behalf of the Existing Rights Holders or the Warrant Rights Holders pursuant to registration rights granted to the Existing Rights Holders or Warrant Rights Holders, as applicable, first, the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified registered by the managing underwriter that may be distributed without adversely affecting Existing Rights Holders and the price, timing or distribution Warrant Rights Holders pro rata among such Existing Rights Holders and Warrant Rights Holders on the basis of such shares of Common Stock, then the Company shall include in such registration only such maximum relative number of Registrable Securities whicheach such holder beneficially owns, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To registration by the extent that shares Participating Holders (other than the Existing Rights Holders and the Warrant Rights Holders), pro rata among such Participating Holders on the basis of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) relative number of Registrable Securities pursuant to clause (iii) aboveeach such holder beneficially owns, such shares shall be allocated pro rata among and third, securities of the holders(s) of Registrable Securities based on Company proposed by the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested Company to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares sold for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringits own account.

Appears in 1 contract

Samples: Registration Rights Agreement (FriendFinder Networks Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) involves an underwritten offering Underwritten Offering and the managing underwriter advises or underwriters advise the Company in writing that, in its or their opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter or underwriters that may be distributed without materially and adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, the Registrable Securities held by all of the shares of Common Stock being registered by holder(s) holders of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Other Securities of the holder(s) of Registrable Securities any holder that are requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(sholder(s) of Registrable Securities or Other Securities, as the case may be, pursuant to clause clauses (ii) and (iii) above, such shares shall be allocated pro rata among the holders(sapplicable holder(s) of Registrable Securities or Other Securities, as the case may be, based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested or Other Securities, as the case may be, held by each such holder (provided that any Registrable Securities or Other Securities allocated to any such holder that exceed such holder's request will be included thereinreallocated among the remaining requesting holders of such securities in like manner); provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an the Incidental Registration is an underwritten offeringUnderwritten Offering, the managing underwriter or underwriters may select shares Registrable Securities for inclusion in such Incidental Registration from the Management Investors on a basis other than a such pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering. Expenses. The Company will pay all Registration Expenses in connection with any registration of Registrable Securities pursuant to Sections 3, 4 and 5 and the Selling Holders and the Company participating in a particular offering shall pay the Holder Expenses pro rata in accordance with the total amount of securities sold in such offering by each such Person.

Appears in 1 contract

Samples: Registration Rights Agreement (Seitel Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering and the managing underwriter advises the Company Holdings in writing that, in its opiniongood faith view, the total number of shares equity securities (including all Registrable Securities) that Holdings and the Shareholders intend to include in such registration exceeds the largest number of Common Stock securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold, Holdings will include in such registration (A) first, all the Priority Securities to be sold for Holdings' own account; and (B) second, to the extent that the number of Priority Securities is less than the number of Registrable Securities that the underwriter has advised Holdings can be sold in such offering without having the adverse effect referred to above, as many Registrable Securities as are requested to be included in such registration, including registration by the Registrable Securities requested to be included Shareholders pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined2(b)(i), and (iii) thirdprovided, however, that if the Registrable Securities of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To registration by the extent Shareholders pursuant to Section 2(b)(i), together with the number of Priority Securities, exceeds the number that shares Holdings has been advised can be sold in such offering without having the adverse effect referred to above, the number of Common Stock such Registrable Securities requested to be included in such registration by the Incidental Registration must be allocated among the holders(s) of Registrable Securities Shareholders pursuant to clause (iiiSection 2(b)(i) above, such shares shall be allocated pro rata among all Shareholders requesting registration on the holders(s) basis of the relative number of Registrable Securities based on the number of shares of Common Stock that owned by them and Shareholders subject to such holders(s) of allocation may elect not to sell any Registrable Securities shall have requested pursuant to the registration statement; provided, further, that the Board may, with respect to any or all restrictions, alter, amend or modify the allocation provisions contained in this paragraph if, in good faith, such action would be included thereinlikely to result in favorable tax treatment or to avoid unfavorable tax treatment of Holdings or the Shareholders; provided, however, that (other than such action is applied uniformly with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringsimilarly situated Shareholders.

Appears in 1 contract

Samples: Shareholders Agreement (RAM Holdings Ltd.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant the Company at any time proposes to Section 3(a) involves an underwritten offering register any of its securities under the Securities Act as contemplated by this section 2.2 and such securities are to be distributed by or through one or more underwriters, the Company will, if requested by any holder of Registrable Securities use its best efforts to arrange for such underwriters to include all the Registrable Securities to be offered and sold by such holder among the securities to be distributed by such underwriters, provided that if the managing underwriter advises of such underwritten offering shall inform the holders of the Registrable Securities requesting such registration and the holders of any Common Stock of the Company in writing thatwhich shall have exercised, in respect of such underwritten offering, registration rights comparable to the rights under this section 2.2, by letter of its opinion, the total belief that inclusion in such underwritten distribution of all or a specified number of such Registrable Securities or of such other securities of the Company so requested to be included would interfere with the successful marketing of the securities so being registered (other than such Registrable Securities and other Common Stock of the Company so requested to be included) by the underwriters (such writing to state the basis of such belief and the approximate number of such Registrable Securities and shares of Common Stock so requested to be included which may be included in such registrationunderwritten offering without such effect), including then the Company may, upon written notice to all holders of such Registrable Securities and of such other shares of Common Stock of the Company so requested to be included, exclude pro rata from such underwritten offering (if and to the extent stated by such managing underwriter to be necessary to eliminate such effect) the number of such Registrable Securities and shares of such other Common Stock so requested to be included pursuant to this Section 3, exceeds the maximum registration of which shall have been requested by each holder of Registrable Securities and by the holders of such other Common Stock so that the resultant aggregate number of such Registrable Securities and of such other shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities so requested to be included which are included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares underwritten offering shall be allocated pro rata among equal to the holders(s) of Registrable Securities based on the approximate number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion stated in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.managing underwriter's letter. 2.3

Appears in 1 contract

Samples: Registration Rights Agreement Registration Rights Agreement (Apollo Investment Fund Iv Lp)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 4 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares Applicable Securities requested to be included in such registration exceeds the number which can be sold in such offering, so as to be likely to have an adverse effect on the successful marketing of Common Stock such offering (including the price at which such Applicable Securities can be sold), then the Company will include in such registration (i) first, 100% of the Applicable Securities the Company proposes to sell and (ii) second, to the extent of the number of Applicable Registrable Securities (and Applicable Securities requested to be registered by other Persons exercising a demand registration right or registration rights similar to those of the Holders pursuant to this Section 4) requested to be included in such registration which, in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, the number of Applicable Registrable Securities (and such Applicable Securities) which the Holders (and such other Persons) have requested to be included in such registration, including the Registrable Securities requested such amount to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(sall requesting Holders (and such other Persons) of Registrable Securities based on the basis of the relative number of shares of New Common Stock that such holders(s) of represented by all Registrable Securities shall have requested then held by each such Holder (or shares of New Common Stock represented by all New Equity Securities then held by such other Person as to be included therein; provided, however, that which such Person has similar registration rights) (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration each case calculated on a fully diluted basis other than a pro rata basis if, in the reasonable opinion and without regard as to whether any such Registrable Security or New Equity Security is then eligible for conversion into shares of New Common Stock or then exercisable or exchangeable for shares of New Common Stock) (provided that any securities thereby allocated to any such underwriter Holder (or underwriters, selection on such other basis would Person) that exceed such Holder’s (or such other Person’s) request will be material to reallocated among the success of the offeringremaining requesting Holders (and such other Persons) in like manner).

Appears in 1 contract

Samples: Registration Rights Agreement (World Color Press Inc.)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and of the managing underwriter advises securities so being registered, whether or not for sale for the Company in writing thataccount of the Company, in its opinionto be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the total number Registrable Securities so requested to be registered for sale for the account of shares Holders of Common Stock Registrable Securities are also to be included in such underwritten offering, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company may include in such offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities and other securities of the Company that persons have requested to be included in such registration by (a) first decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, including to the extent necessary, decreasing the Registrable Securities requested to be included pursuant registered (pro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to this Section 3the filing of the registration statement with respect to such registration); provided, exceeds however, that the maximum number rights of shares Holders hereunder shall be subject to (i) the right of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Series A Persons requesting inclusion of such shares of Common Stock, then the Company shall include securities in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, to include all of the shares of Common Stock that the Company proposes securities requested to sell for its own account, if any, (ii) second, all of the shares of Common Stock being be registered by holder(s) such Series A Persons in such registration without reduction prior to the inclusion of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of any Registrable Securities requested to be included in such Incidental Registration. To registration pursuant to this Section 2.2., and (ii) the extent that shares rights of Common Stock Series B Persons, Series C Persons, series D Persons, Series E Persons, Series F Persons, Series G Persons, Series H Persons and Series E Warrant Purchasers requesting registration to be included include securities in such registration on a pro rata basis with the Registrable Securities of Holders hereunder in the Incidental Registration must be allocated among the holders(ssame manner as described in Section 2.1(c) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included thereinhereof; provided, however, that the rights of Takeda as a Holder hereunder shall, to the extent determined by Takeda to be appropriate for sales by Takeda pursuant to Section 8.4(e) of the Alliance Agreement, be a prior right of Takeda to such extent (whether pursuant to "demand" or "piggyback" registration rights) and in preference to the registration rights of other than with respect Holders and Series A Persons, Series B Persons, Series D Persons, Series E Persons, Series F Persons, Series G Persons, Series H Persons and Series E Warrant Purchasers to holders include all of -------- ------- the Registrable Securities that are entitled requested by Takeda to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion be registered in such Incidental Registration on a basis other than a pro rata basis if, registration in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material registration to the success extent of 50% of the offeringtotal number of shares to be registered for the account of selling shareholders (and in place of the rights Takeda would otherwise have to participate in registration rights as to the remaining 50% balance of shares to be registered for the account of selling shareholders, except to the extent other selling shareholders do not request registration as to such remaining balance).

Appears in 1 contract

Samples: Registration Rights Agreement (BioNumerik Pharmaceuticals, Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) (other than a Demand Registration or S-3 Registration, it being understood the priority for such registrations is set forth in Section 4(d)) involves an underwritten offering Underwritten Offering and the managing underwriter advises or underwriters advise the Company in writing that, in its or their opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter or underwriters that may be distributed without materially and adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, and (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities that are requested to be included in such Incidental RegistrationRegistration by the holders of such Registrable Securities. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(sholder(s) of Registrable Securities pursuant to clause (iiiii) above, such shares shall be allocated pro rata among the holders(sapplicable holder(s) of Registrable Securities based on the number of shares of Common Stock that such holders(sholder(s) of Registrable Securities shall have requested to be included therein; provided. Notwithstanding the foregoing, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offeringUnderwritten Offering, the managing underwriter or underwriters may select shares of Common Stock for inclusion inclusion, or exclude shares in part or completely, in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis basis, or inclusion of such shares, would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Bravo Brio Restaurant Group, Inc.)

Priority in Incidental Registrations. Section 3(b) of the ------------------------------------ Agreement is hereby stricken and replaced in its entirety with the following: "If a registration ------------------------------------ pursuant to Section 3(a) involves an underwritten offering and the managing underwriter (or underwriters) advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, ; (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant entitled to make a Demand Registration (as hereinafter defined)) held by the party requesting such Demand Registration and by Berkshire Hathaway Inc. and its Affiliates, provided -------- that such amount shall be allocated among such parties on a pro rata basis based upon their respective percentage of ownership of the total number of shares of Common Stock then outstanding; and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(sholder(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(sholder(s) of Registrable Securities based on the number of shares of Common Stock that such holders(sholder(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)and Berkshire Hathaway Inc. and its Affiliates) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering."

Appears in 1 contract

Samples: Registration Rights Agreement (Remy International Inc)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering of the securities so being registered, whether or not for sale for the account of the Company, and (ii) the managing underwriter advises of such underwritten offering shall inform the Company in writing that, in and the holders of the Registrable Securities requesting such registration by letter of its opinion, belief that the total number of shares of Common Stock securities requested to be included in such registrationregistration exceeds the number which can be sold in (or during the time of) such offering, including then (A) in the case of an offering for the account of the Company, registration for the Registrable Securities shall be cut back such that (i) no holder of Registrable Securities shall be entitled to participate in such underwritten public offering unless all shares of Common Stock proposed to be sold by the Company for its own account have been included in such underwritten public offering, and (ii) after the Company has included its own shares of Common Stock, the holders of Registrable Securities and the holders of other securities as to which the Company has granted registration rights ("Other Registrable Securities"), including incidental registration rights, shall be entitled to include their Registrable Securities and Other Registrable Securities in an amount up to the amount that such managing underwriter or underwriters advise may be included therein (allocated among the holders of Registrable Securities and the holders of other Registrable Securities pro rata on the basis of the number of securities requested to be included pursuant therein by each such holder) and (B) in the case of an offering that was commenced as a result of the exercise of demand registration rights by Persons other than Stockholders, the Persons commencing such registration and the holders of Registrable Securities shall be entitled to this Section 3, exceeds include their Registrable Securities and Other Registrable securities in an amount up to the maximum amount such managing underwriters or underwriters advise may be included therein (allocated among the persons commencing such registration and the holders of Registrable Securities pro rate on the basis of the number of shares of Common Stock specified securities requested to be so included therein by each such person or holder). If, however, the registration was initiated by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Company within one hundred twenty (120) days of such shares of Common Stocka requested registration and is in lieu thereof, then the Company shall include in such the registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To registration and shall decrease the number of securities proposed to be sold by the Company and to be included in such registration to the extent that shares necessary to reduce the number of Common Stock securities to be included in the Incidental Registration must be allocated among registration to the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, level recommended by the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringunderwriter.

Appears in 1 contract

Samples: Registration Rights Agreement (Isonics Corp)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and of the managing underwriter advises securities so being registered, whether or not for sale for the Company in writing thataccount of the Company, in its opinionto be distributed (on a firm commitment basis) by or through one or more underwriters of recognized standing, whether or not the total number Registrable Securities so requested to be registered for sale for the account of shares Holders of Common Stock Registrable Securities are also to be included in such underwritten offering, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company may include in such offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities and other securities of the Company that persons have requested to be included in such registration by (a) first decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, including to the extent necessary, decreasing the Registrable Securities requested to be included pursuant registered (pro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders immediately prior to this Section 3the filing of the registration statement with respect to such registration); provided, exceeds however, that the maximum number rights of shares Holders hereunder shall be subject to (i) the right of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Series A Persons requesting inclusion of such shares of Common Stock, then the Company shall include securities in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, to include all of the shares of Common Stock that the Company proposes securities requested to sell for its own account, if any, (ii) second, all of the shares of Common Stock being be registered by holder(s) such Series A Persons in such registration without reduction prior to the inclusion of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of any Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities registration pursuant to clause this Section 2.2., and (iiiii) abovethe rights of Series B Persons, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested Series C Persons and Series D Persons requesting registration to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion include securities in such Incidental Registration registration on a basis other than a pro rata basis if, with the Registrable Securities of Holders hereunder in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringsame manner as described in Section 2.1(c) hereof.

Appears in 1 contract

Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a2(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 32, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, ; (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), Registration; and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided. Notwithstanding the foregoing, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion inclusion, or exclude shares completely, in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis basis, or inclusion of such shares, would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Intersil Holding Co)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 3.2 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant in such registration would be likely to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting have an adverse effect on the price, timing or distribution of the securities to be offered in such shares of Common Stockoffering as contemplated by the Company (other than the Registrable Securities), then the Company shall include in such registration only such maximum number of Registrable Securities which(a) FIRST, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all 100% of the shares of Common Stock that securities the Company proposes to sell for its own account, if anysell, (iib) secondSECOND, all to the extent of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) amount of Registrable Securities requested to be included in such Incidental Registration. To registration which, in the extent that shares opinion of Common Stock such managing underwriter, can be sold without having the adverse effect referred to above, the amount of Registrable Securities which the Stockholders have requested to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) abovesuch registration, such shares shall amount to be allocated pro rata among all requesting Stockholders on the holders(s) basis of the relative amount of Registrable Securities based on then held by each such Stockholder (provided, that any such amount thereby allocated to any such Stockholder that exceeds such Stockholder’s request shall be reallocated among the number remaining requesting Stockholders and other Stockholders in like manner) and THIRD, to the extent of shares of Common Stock that such holders(s) the amount of Registrable Securities shall subject to registration rights held by holders other than the Stockholders who have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifregistration, which, in the reasonable opinion of such underwriter or underwritersmanaging underwriter, selection can be sold without having the adverse effect referred to above, the amount of Registrable Securities which the other holders have requested to be included in such registration, 11 such amount to be allocated pro rata among all requesting other holders on the basis of the relative amount of Registrable Securities then held by each such other basis would be material to the success of the offeringholder.

Appears in 1 contract

Samples: Acquisition Agreement (NRG Energy, Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the lead managing underwriter advises Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) on or before the date five (5) days prior to the date then scheduled for such offering that, in its opinion, the total number amount of shares securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be reasonably expected to be sold in (or during the time of) such offering without adversely affecting the success of Common Stock the distribution of the securities being offered, then the Company will include in such registration, first, all the securities desired to be sold by the Company pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including Holders), and second, the amount of other securities (including Registrable Securities) requested to be included in such registration that the Company is so advised can be sold in (or during the time of) such offering, allocated, if necessary, pro rata among the holders (including the Holders) thereof requesting such registration on the basis of the percentage of the securities (including Registrable Securities) beneficially owned at the time that each holder (including Holders) requesting inclusion of their securities desires to register in such registration; provided, however, that in the event the Company determines, by virtue of this paragraph, not to include in any such registration all of the Registrable Securities of any Holder requested to be included in such registration, including such Holder may, upon written notice to the Company given within 3 days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the amount of Registrable Securities requested which each Holder is entitled to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum shall be re-calculated utilizing the reduced total number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration.

Appears in 1 contract

Samples: Registration Rights Agreement (New BlackRock, Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a2(a) (other than a Demand Registration, it being understood the priority for such registrations is set forth in Section 3(b)) involves an underwritten offering and the managing underwriter (or underwriters) advises the Company in writing that, in its (or their) opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 32, exceeds the maximum number of shares of Common Stock specified by the managing underwriter or underwriters that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) holders of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) holders of Registrable Securities based on the number of shares of Common Stock that such holders(s) holders of Registrable Securities shall have requested to be included therein; providedNotwithstanding the foregoing, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Polaroid Holding Co)

Priority in Incidental Registrations. If a any registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and the managing underwriter advises underwriter(s) of such offering shall inform the Company in writing that, in of its opinion, belief that the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant in such registration or offering, when added to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may other equity securities to be distributed without included in such registration or offering, would materially adversely affecting the price, timing or distribution of affect such shares of Common Stockoffering, then the Company shall include in such registration only such maximum or offering, to the extent of the number of Registrable Securities which, in and type which the reasonable opinion of such underwriter or underwriters, Company is so advised can be sold in (or during the following order of priority: time of) such offering without so materially adversely affecting such registration or offering (the "Section 2.2 Sale Amount"), (i) first, all of the shares of Common Stock that securities proposed by the Company proposes to sell be sold for its own account, if any, ; (ii) secondthereafter, all of to the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) thirdextent the Section 2.2 Sale Amount is not exceeded, the Registrable Securities of the holder(s) of Registrable Securities securities requested to be included in such Incidental Registration. To registration pursuant to the Kapoor Agreement (except with respect to the Required Registration (as defined in the AEG Agreement) and the Demand Registrations (as defined in the AEG Agreement) under the AEG Agreement, which shall have the priorities as set forth therein); (iii) thereafter, to the extent that shares of Common Stock the Section 2.2 Sale Amount is not exceeded, the securities requested to be included in such registration pursuant to the Incidental AEG Agreement (except with respect to the Required Registration must be allocated among (as defined in the holders(sAEG Agreement) of and the Demand Registrations (as defined in the AEG Agreement) under the AEG Agreement, which shall have the priorities as set forth therein); (iv) thereafter, to the extent the Section 2.2 Sale Amount is not exceeded, the Registrable Securities pursuant to clause requested by the Participating Holders (iii) aboveprovided that if all of the Registrable Securities requested by the Participating Holders may not be included, such shares the Participating Holders shall be allocated entitled to participate on a pro rata among the holders(s) of Registrable Securities basis based on the aggregate number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested by the Participating Holders to be registered); and (v) thereafter, to the extent the Section 2.2 Sale Amount is not exceeded, any other securities of the Company requested to be included therein; provided, however, that (by Company stockholders holding other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringregistration rights.

Appears in 1 contract

Samples: Registration Rights Agreement (Akorn Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided. Notwithstanding the foregoing, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion inclusion, or exclude shares completely, in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.on

Appears in 1 contract

Samples: Holders Agreement (Erico Products Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a2(a) involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 32, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, ; (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter definedincluding Xxxxxx if demand shall have been made by Sterling pursuant to Section 3), ; and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided. Notwithstanding the foregoing, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion inclusion, or exclude shares completely, in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis basis, or inclusion of such shares, would be material to the success of the offering.

Appears in 1 contract

Samples: Registration Rights Agreement (Intersil Holding Co)

Priority in Incidental Registrations. If the Incidental Registration is for a registration ------------------------------------ pursuant to Section 3(a) involves registered public offering involving an underwritten offering and the managing underwriter advises underwriting, the Company in writing that, in its opinionshall so advise the Holders of Registrable Securities as a part of such notice. In such event, the total number right of shares of Common Stock any Holder to be included in such registration, including the Registrable Securities requested to be included registration pursuant to this Section 32.2 shall be conditioned upon, exceeds and shall not be exercisable by any Holder without, such Holder's participation in such underwriting and the maximum inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. If required by the Underwriter then (i) all Holders proposing to distribute their Registrable Securities through such underwriting shall, to the extent required by the Underwriter, enter into an underwriting agreement with the Underwriter in customary form, and (ii) all Holders shall agree not to sell publicly any of their Registrable Securities for such period as the Underwriter may reasonably request, provided that such period shall not exceed one hundred eighty (180) days. Notwithstanding any other provision of this Section 2.2, if the Underwriter determines that marketing or other factors require a limitation of the number of shares of Common Stock specified by the managing underwriter that may securities to be distributed without adversely affecting the price, timing or distribution of such shares of Common Stockunderwritten, then the Company shall include Underwriter in its sole discretion may exclude from such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter and underwriting some or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) registration and underwriting by Holders of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among and other parties other than the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included thereinCompany; provided, however, that (if all securities requested to be included in such registration and underwriting by holders of Registrable Securities and parties other than with respect the Company are not so excluded by the Underwriter, then the number of such included securities shall be allocated proportionately among all parties (prorated in proportion to holders the number of -------- ------- shares of Class A Common Stock or Class B Common Stock owned by such parties) having the right to request registration of securities (including Holders of Registrable Securities). If securities requested to be registered by Holders of Registrable Securities that are entitled excluded pursuant to make a Demand Registration Request (as hereinafter definedthis Section 2.2(b)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select such exclusion shall be apportioned among such Holders pro rata based upon such requesting Holder's total holdings of Registrable Securities, and not total shares requested for inclusion in the registration. If any Holder of Registrable Securities disapproves of the terms of any underwriting subject to this Section 2.2(b), then such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material Holder may elect to withdraw therefrom by written notice to the success Company and the Underwriter. Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. The Company shall advise all persons seeking to include their securities in such registration and underwriting of the offeringnumber of each such person's securities that may be so included.

Appears in 1 contract

Samples: Registration Rights Agreement (Encore Acquisition Co)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to Section 3(a5.3(a) hereof involves an underwritten offering and the managing underwriter advises the Company IBC in writing writing, that, in its opinion, the total number of shares of Common Stock IBC Securities intended to be included in such registrationRegistration Statement exceeds the largest number of IBC Securities which can be sold without having an adverse effect on such offering, including the Registrable Securities requested price at which such securities can be sold or, if in a non-underwritten offering, IBC determines, in its reasonable discretion, to limit the number of securities to be included pursuant to this Section 3sold, exceeds (in either case, the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price"Marketable Number"), timing or distribution of such shares of Common Stock, then the Company shall IBC will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: Registration Statement (i) first, all of the shares IBC Securities IBC or the Person referred to in the first sentence of Common Stock that the Company Section 5.3(a)(i) proposes to sell for its own account, if any, (ii) second, all of the shares IBC Securities requested to be included by holders of Common Stock being registered by holder(s) of Registrable IBC Securities pursuant to a Demand Section 3 of the First Registration (as hereinafter defined)Rights Agreement, and (iii) third, the Registrable IBC Securities requested to be included by Ralston pursuant to Section 5.3(a) hereof and (iv) fourth, xxx xxxurities requested to be included by other Persons (but if the number of securities to be registered pursuant to clause (iv) together with the number of securities to be included in such registration pursuant to clauses (i), (ii) and (iii) of this Section 5.3(b) exceeds the Marketable Number, the number of securities of Persons to be registered pursuant to clause (iv) shall be allocated pro rata among such Persons on the basis of the holder(s) relative number of Registrable IBC Securities each such Person has requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter definedregistration)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offering.

Appears in 1 contract

Samples: Shareholder Agreement (Ralston Purina Co)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering and the managing underwriter advises the Company Holdings in writing that, in its opiniongood faith view, the total number of shares equity securities (including all Registrable Securities) that Holdings and the Shareholders intend to include in such registration exceeds the largest number of Common Stock securities that can be sold without having an adverse effect on such offering, including the price at which such Registrable Securities can be sold, Holdings will include in such registration (A) first, all the Priority Securities to be sold for Holdings’ own account; and (B) second, to the extent that the number of Priority Securities is less than the number of Registrable Securities that the underwriter has advised Holdings can be sold in such offering without having the adverse effect referred to above, as many Registrable Securities as are requested to be included in such registration, including registration by the Registrable Securities requested to be included Shareholders pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined2(b)(i), and (iii) thirdprovided, however, that if the Registrable Securities of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To registration by the extent Shareholders pursuant to Section 2(b)(i), together with the number of Priority Securities, exceeds the number that shares Holdings has been advised can be sold in such offering without having the adverse effect referred to above, the number of Common Stock such Registrable Securities requested to be included in such registration by the Incidental Registration must be allocated among the holders(s) of Registrable Securities Shareholders pursuant to clause (iiiSection 2(b)(i) above, such shares shall be allocated pro rata among all Shareholders requesting registration on the holders(s) basis of the relative number of Registrable Securities based on the number of shares of Common Stock that owned by them and Shareholders subject to such holders(s) of allocation may elect not to sell any Registrable Securities shall have requested pursuant to the registration statement; provided, further, that the Board may, with respect to any or all restrictions, alter, amend or modify the allocation provisions contained in this paragraph if, in good faith, such action would be included thereinlikely to result in favorable tax treatment or to avoid unfavorable tax treatment of Holdings or the Shareholders; provided, however, that (other than such action is applied uniformly with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringsimilarly situated Shareholders.

Appears in 1 contract

Samples: Shareholders Agreement (PMI Mortgage Insurance Co.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 3.2 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock to be included in such registration, including the Registrable Securities requested to be included pursuant in such registration would be likely to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting have an adverse effect on the price, timing or distribution of the securities to be offered in such shares of Common Stockoffering as contemplated by the Company (other than the Registrable Securities), then the Company shall include in such registration only such maximum number of Registrable Securities which(a) FIRST, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all 100% of the shares of Common Stock that securities the Company proposes to sell for its own account, if anysell, (iib) secondSECOND, all to the extent of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) amount of Registrable Securities requested to be included in such Incidental Registration. To registration which, in the extent that shares opinion of Common Stock such managing underwriter, can be sold without having the adverse effect referred to above, the amount of Registrable Securities which the Stockholders have requested to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) abovesuch registration, such shares shall amount to be allocated pro rata among all requesting 11 Stockholders on the holders(s) basis of the relative amount of Registrable Securities based on then held by each such Stockholder (provided, that any such amount thereby allocated to any such Stockholder that exceeds such Stockholder’s request shall be reallocated among the number remaining requesting Stockholders and other Stockholders in like manner) and THIRD, to the extent of shares of Common Stock that such holders(s) the amount of Registrable Securities shall subject to registration rights held by holders other than the Stockholders who have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifregistration, which, in the reasonable opinion of such underwriter or underwritersmanaging underwriter, selection can be sold without having the adverse effect referred to above, the amount of Registrable Securities which the other holders have requested to be included in such registration, such amount to be allocated pro rata among all requesting other holders on the basis of the relative amount of Registrable Securities then held by each such other basis would be material to the success of the offeringholder.

Appears in 1 contract

Samples: Investor Rights Agreement (NRG Energy, Inc.)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a2(b) involves an underwritten offering offering, and the managing underwriter advises shall advise the Company in writing writing, that, in its opinion, the total number of shares of Common Stock securities requested and otherwise proposed to be included in such registration, including the Registrable Securities requested to be included pursuant to this Section 3, registration exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, which can be sold in such offering within a price range acceptable to the following order Company, or that the kind of priority: securities requested or otherwise proposed to be included in such registration statement would materially and adversely affect the success of such offering, the Company will include in such registration, to the extent of the number which the Company is so advised can be sold in such offering, (iA) if the registration is a primary registration on behalf of the Company, (1) first, all of the shares of Common Stock that securities proposed to be registered by the Company proposes to sell for its own account, if anyCompany, (ii2) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To registration by the extent that shares Quad-C Holders and the Executive Holders, pro rata among such holders in proportion to the number of Common Stock Registrable Securities held by them, and (3) third, securities of other Persons, if any, requested to be included in such registration pro rata in accordance with the Incidental Registration must numbers of other securities proposed to be registered by the other Persons or otherwise allocated among such other Persons in such proportion as such holders and the holders(sCompany shall agree, and (B) if the registration is a secondary registration on behalf of other Persons, the Registrable Securities and securities of other Persons included in such registration pro rata in accordance with the numbers of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included thereinby the Requesting Holders and the numbers of other securities proposed to be registered by the other Persons; providedprovided in each such case that if the registration involves an underwritten offering and the managing underwriter(s) shall advise the Company in writing (with a copy to each Shareholder requesting registration of Registrable Securities) that, howeverin its opinion, that (the number of securities requested to be included in such registration by Executive Holders or other than with respect to holders of -------- ------- Registrable Shares exceeds the number which can be sold in such offering within a price range acceptable to the Company, or that the kind of securities requested or otherwise proposed to be included in such registration by Executive Holders or other holders of Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten would materially and adversely affect the success of such offering, the managing underwriter or underwriters may select shares for inclusion number of securities permitted to be included in such Incidental Registration on a basis registration by each Executive Holder or other than a pro rata basis ifholder Registrable Shares under clause (A)(2) or (A)(3) above, in as applicable, shall be ratably reduced by the reasonable opinion amount of such underwriter or underwritersexcess. In the event a contemplated distribution does not involve an underwritten public offering, selection on such other basis would the determinations contemplated by this Section 2(b) shall be material to made by the success Board of the offeringDirectors.

Appears in 1 contract

Samples: Registration Rights Agreement (Asset Acceptance Capital Corp)

Priority in Incidental Registrations. If the managing underwriter for a registration ------------------------------------ pursuant to this Section 3(a) 5.02 that involves an underwritten offering and the managing underwriter advises shall advise the Company in writing that, in its opinion, the total inclusion in such registration of the securities proposed to be included in such registration by the Company for its own account, plus the number of shares Registrable Common Shares requested to be included in such registration by the Registered Stockholder, plus the securities requested to be included by any other securityholders would materially adversely effect the ability of the Company with respect to securities to be disposed of for its own account to dispose of their securities in an orderly manner in such offering within a price range acceptable to the Company, the Company shall include (i) first, all the securities which the Company proposes to register for its own account or which are proposed to be registered pursuant to demand registration rights, (ii) second, all the securities that the Company proposes to register for the account of any other stockholder who exercises certain piggy-back registration rights existing as of the date hereof, and (iii) third, to the extent that their inclusion would not have a material adverse effect in the manner described above, the number of Registrable Common Stock Shares and other equity securities and the principal amount of debt securities requested to be included by the Registered Stockholder and other securityholders allocated pro rata among the Registered Stockholder and such other securityholders on the basis of the relative number of Registrable Common Shares and equity securities and the principal amount of such debt securities requested to be included in such registration. Notwithstanding anything contained herein to the contrary, including in the Registrable Securities requested event the Company proposes to be included pursuant to this Section 3, exceeds register its securities under the maximum number 1933 Act for the account of shares any stockholder who exercises certain demand registration rights existing as of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stockdate hereof, then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: statement (i) first, all such securities being registered in connection with such demand registration rights existing as of the shares of Common Stock that date hereof, (ii) second, all the securities the Company proposes to sell register for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringShares.

Appears in 1 contract

Samples: Gliatech Inc

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant The Issuer shall use reasonable efforts to Section 3(a) involves an underwritten offering and cause the managing underwriter advises underwriter(s) of a proposed Underwritten Offering to permit Holders of Registrable Securities who have requested to include Registrable Securities in such offering to include in such offering all Registrable Securities so requested to be included on the Company same terms and conditions as any other shares of capital stock, if any, of the Issuer included in the offering. Notwithstanding the foregoing, if the managing underwriter(s) of such Underwritten Offering have informed the Issuer in writing that, that in its opinion, good faith opinion the total number or dollar amount of shares securities that such Holders and the Issuer intend to include in such offering is such as to likely have a material adverse effect on the timing, price or distribution of Common Stock to such offering, then there shall be included in such registration, including Underwritten Offering the number or dollar amount of Registrable Securities that in the good faith opinion of such managing underwriter(s), after consultation with the Issuer, determines can be sold without having such material adverse effect on such offering, and such number of Registrable Securities shall be allocated as follows: first, all securities of the Issuer requested to be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stock, then the Company shall include Issuer in such registration only registration; second, all securities of the Issuer requested to be included by each Investor and its Affiliates, pro rata among such maximum Holders on the basis of the percentage of Registrable Securities owned by each such Holder relative to the number of Registrable Securities which, in the reasonable opinion of owned by all such underwriter or underwriters, can be sold in the following order of priority: (i) firstHolders; and third, all securities of the shares Issuer requested to be included by other holders of Common Stock that Shares (other than any Investor and its Affiliates) requesting such registration as a result of registration rights or otherwise, pro rata among such holders of Common Shares on the Company proposes to sell for its own account, if any, (ii) second, all basis of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities percentage of the holder(s) of Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) above, registration by such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringholders.

Appears in 1 contract

Samples: Registration Rights Agreement (Patria Investments LTD)

Priority in Incidental Registrations. If (i) a registration ------------------------------------ pursuant to this Section 3(a) 2.2 involves an underwritten offering and of the managing underwriter advises securities so being registered, whether or not for sale for the Company in writing thataccount of the Company, in its opinionto be distributed (on a firm, commitment basis) by or through one or more underwriters of recognized standing, whether or not the total number Registrable Securities so requested to be registered for sale for the account of shares Holders of Common Stock Registrable Securities are also to be included in such underwritten offering, and (ii) the managing underwriter of such underwritten offering shall inform the Company and the Holders of the Registrable Securities requesting such registration by letter of its belief that the number of securities requested to be included in such registration exceeds the number which can be sold in (or during the time of) such offering, then the Company may include in such offering all securities proposed by the Company to be sold for its own account and may decrease the number of Registrable Securities and other securities of the Company that persons have requested to be included in such registration by (a) first decreasing the securities requested to be included in such registration other than Registrable Securities (pro rata among the persons requesting such registration on the basis of the number of shares of such securities held by such person immediately prior to the filing of the registration statement with respect to such registration) and (b) then, including to the extent necessary, decreasing the Registrable Securities requested to be included pursuant registered (pro rata among the Holder's requesting such registration on the basis of the percentage of the Registrable Securities held by such Holder's immediately prior to this Section 3the filing of the registration statement with respect to such registration); provided, exceeds however, that the maximum number rights of shares Holders hereunder shall be subject to the right of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution Series A Persons requesting inclusion of such shares of Common Stock, then the Company shall include securities in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, to include all of the shares of Common Stock that the Company proposes securities requested to sell for its own account, if any, (ii) second, all of the shares of Common Stock being be registered by holder(s) such Series A Persons in such registration without reduction prior to the inclusion of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of any Registrable Securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities registration pursuant to clause (iii) above, such shares shall be allocated pro rata among the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success of the offeringthis Section 2.2.

Appears in 1 contract

Samples: Registration Rights Agreement (Bionumerik Pharmaceuticals Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 2 involves an underwritten public offering and the managing underwriter or underwriters in its judgment advises the Company in writing that, in its opinion, the total number of shares of Common Stock securities which the Company, the Holders and any other Persons intend to be included include in such registration, registration exceeds the largest number of securities which can be sold in such offering without having an adverse effect on such offering (including the Registrable Securities requested to price at which such securities can be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stocksold), then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all if the registration pursuant to this Section 2 was initiated by Other Holders exercising demand registration rights, 100% of the shares securities such Other Holders propose to sell (except to the extent the terms of Common Stock that such Other Holders' registration rights provide otherwise); (ii) second, 100% of the securities the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and ; (iii) third, to the Registrable Securities extent that the number of securities which such Other Holders exercising demand registration rights and the holder(s) Company propose to sell is, in the aggregate, less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, such number of Registrable Securities Shares which the Holders have requested to be included in such Incidental Registration. To registration and such number of securities which Other Holders have requested to be included in such registration, in each case pursuant to Section 2(a) or other piggyback or incidental registration rights and which, in the extent that opinion of such managing underwriter or underwriters, can be sold without having the adverse effect referred to above, such number of Registrable Shares and securities to be included on a pro rata basis among all requesting Holders and Other Holders on the basis of the relative number of shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Exchange Act) by such Holders and Other Holders (provided, that if the number of Registrable Shares requested to be included in such registration by the Incidental Registration must be allocated among the holders(s) of Registrable Securities Holders pursuant to clause (iiiSection 2(a) and permitted to be included in such registration by the Holders pursuant to this Section 2(b) exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such shares Registrable Shares to be included in such registration by the Holders shall be allocated pro rata among such Holders on the holders(s) basis of the relative number of Registrable Securities based on the number of shares of Common Stock that Shares each such holders(s) of Registrable Securities shall have Holder has requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifregistration); and (iv) fourth, to the extent that the number of securities which are to be included in such registration pursuant to clauses (i), (ii) and (iii) of this Section 2(b) is, in the reasonable aggregate, less than the number of securities which the Company has been advised can be sold in such offering without having the adverse effect referred to above, such number of other securities requested to be included in the offering for the account of any other Persons which, in the opinion of such managing underwriter or underwriters, selection on can be sold without having the adverse effect referred to above, such number to be allocated pro rata among all holders of such other securities on the basis would be material to the success of the offeringrelative number of such other securities each other Person has requested to be included in such registration.

Appears in 1 contract

Samples: Registration Rights Agreement (Goldman Sachs Group Inc/)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 2 involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the total number of shares of Common Stock securities requested to be included in such registrationregistration exceeds the number which can be sold in such offering, including the Registrable Securities requested so as to be included pursuant reasonably likely to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting have an adverse effect on the price, timing or distribution of the securities offered in such shares of Common Stockoffering (other than the Registrable Securities), then the Company shall will include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priority: (i) first, all 100% of the securities, if any, the Company proposes to sell, after giving effect to the priority, pro ration or cutback provisions contained in any Other Registration Rights Agreement; provided that the registration of shares of Common Stock that contemplated by this Section 2 was initiated by the Company proposes with respect to sell shares intended to registered for sale for its own account, if any, (ii) second, all the number of securities held by a party to an Other Registration Rights Agreement that the Company is required (after giving effect to the priority, pro ration or cutback provisions contained in any Other Registration Rights Agreement and any withdrawal from the proposed registration of shares of Common Stock being registered by holder(sa holder of shares of Common Stock that is a party to such Other Registration Rights Agreement) of Registrable Securities to include in such registration pursuant to a Demand an Other Registration (as hereinafter defined), Rights Agreement and (iii) third, to the Registrable Securities extent of the holder(s) number of Registrable Securities requested to be included in such Incidental Registration. To registration which, in the extent that shares opinion of Common Stock such managing underwriter, can be sold without having the adverse effect referred to above, the number of Registrable Securities which the Holders have requested to be included in the Incidental Registration must be allocated among the holders(s) of Registrable Securities pursuant to clause (iii) abovesuch registration, such shares shall amount to be allocated pro rata among all requesting Holders on the holders(s) basis of the relative number of Registrable Securities based on then held by each such Holder (except to the extent that two or more requesting Holders shall have agreed to a different allocation among such requesting Holders); provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the remaining requesting Holders in like manner. In the event that the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included therein; provided, however, that (other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental registration and securities which the Company is so required to include in such registration in accordance with any Other Registration on a basis other Rights Agreement is less than a pro rata basis ifthe number which, in the reasonable opinion of the managing underwriter, can be sold, the Company may include in such underwriter or underwriters, selection on such other basis would be material registration the securities it proposes to sell up to the success number of securities that, in the opinion of the offeringunderwriter, can be sold.

Appears in 1 contract

Samples: Registration Rights Agreement (Regal Cinemas Inc)

Priority in Incidental Registrations. If a registration ------------------------------------ pursuant to this Section 3(a) 2 involves an underwritten offering and the managing underwriter in good faith advises the Company in writing that, in its opinion, the total number of shares of Common Stock securities which the Company, the Holders and any other Persons intend to be included include in such registration, registration exceeds the largest number of securities which can be sold in such offering without having an adverse effect on such offering (including the Registrable Securities requested to price at which such securities can be included pursuant to this Section 3, exceeds the maximum number of shares of Common Stock specified by the managing underwriter that may be distributed without adversely affecting the price, timing or distribution of such shares of Common Stocksold), then the Company shall include in such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter or underwriters, can be sold in the following order of priorityregistration: (i) firstFIRST, all 100% of the shares of Common Stock that securities the Company proposes to sell for its own account, if any, ; and (ii) secondSECOND, all of the shares of Common Stock being registered by holder(s) such number of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, Shares which the Registrable Securities of the holder(s) of Registrable Securities Holders have requested to be included in such Incidental Registration. To registration and such number of securities which Other Holders have requested to be included in such registration which, in the extent that opinion of such managing underwriter, can be sold without having the adverse effect referred to above, such number of Registrable Shares and securities of Other Holders to be included on a pro rata basis among all requesting Holders and Other Holders on the basis of the relative number of shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Exchange Act) by such Holders and Other Holders, PROVIDED that if the number of Registrable Shares requested to be included in such registration by the Incidental Registration must be allocated among the holders(sOther Holders pursuant to Section 2(a) of Registrable Securities the Warrantholders Registration Rights Agreement and permitted to be included in such registration by the Other Holders pursuant to clause (iiiSection 2(b) of the Warrantholders Registration Rights Agreement exceeds the number which the Company has been advised can be sold in such offering without having the adverse effect referred to above, the number of such shares Registrable Shares to be included in such registration by the Other Holders shall be allocated pro rata among such Other Holders on the holders(sbasis set forth in Section 2(b) of Registrable Securities based on the Warrantholders Registration Rights Agreement and, in such event, the Holders shall have no right to register shares pursuant to this Agreement; and (iii) THIRD, to the extent that the number of shares securities which are to be included in such registration pursuant to clauses (i) and (ii), in the aggregate, is less than the number of Common Stock that securities which the Company has been advised can be sold in such holders(s) offering without having the adverse effect referred to above, such number of Registrable Securities shall have other securities requested to be included therein; provided, however, that (in the offering for the account of any other than with respect to holders of -------- ------- Registrable Securities that are entitled to make a Demand Registration Request (as hereinafter defined)) if an Incidental Registration is an underwritten offering, the managing underwriter or underwriters may select shares for inclusion in such Incidental Registration on a basis other than a pro rata basis ifPersons which, in the reasonable opinion of such underwriter or underwritersmanaging underwriter, selection on can be sold without having the adverse effect referred to above, such number to be allocated pro rata among all holders of such other securities on the basis would be material to the success of the offeringrelative number of such other securities each other person has requested to be included in such registration.

Appears in 1 contract

Samples: Shareholders Registration Rights Agreement (Burke Flooring Products Inc)

Priority in Incidental Registrations. If a the registration ------------------------------------ of which the Company gives written notice pursuant to Section 3(a2.2(a) involves is for a registered public offering involving an underwritten offering and the managing underwriter advises underwriting, the Company in writing that, in its opinionshall so advise the holders of Registrable Securities as a part of such notice. In such event, the total number right of shares of Common Stock any holder to be included in such registration, including the Registrable Securities requested to be included registration pursuant to this Section 32.2 shall be conditioned upon, exceeds and shall not be exercisable by any holder without, such holder's participation in such underwriting and the maximum inclusion of such holder's Registrable Securities in the underwriting to the extent provided herein. If required by the underwriter or underwriters selected by the Company for such underwriting (collectively, the "Underwriter"), then (i) all holders proposing to distribute their Registrable Securities through such underwriting shall, to the extent required by the Underwriter, enter into an underwriting agreement with the Underwriter in customary form, and (ii) all holders shall agree not to sell publicly any of their Registrable Securities for such period as the Underwriter may reasonably request. Notwithstanding any other provision of this Section 2.2, if the Underwriter determines that marketing or other factors require a limitation of the number of shares of Common Stock specified by the managing underwriter that may securities to be distributed without adversely affecting the price, timing or distribution of such shares of Common Stockunderwritten, then the Company shall include Underwriter in its sole discretion may exclude from such registration only such maximum number of Registrable Securities which, in the reasonable opinion of such underwriter and underwriting some or underwriters, can be sold in the following order of priority: (i) first, all of the shares of Common Stock that the Company proposes to sell for its own account, if any, (ii) second, all of the shares of Common Stock being registered by holder(s) of Registrable Securities pursuant to a Demand Registration (as hereinafter defined), and (iii) third, the Registrable Securities of the holder(s) of Registrable Securities securities requested to be included in such Incidental Registration. To the extent that shares of Common Stock to be included in the Incidental Registration must be allocated among the holders(s) registration and underwriting by holders of Registrable Securities pursuant to clause (iii) above, such shares shall be allocated pro rata among and other parties other than the holders(s) of Registrable Securities based on the number of shares of Common Stock that such holders(s) of Registrable Securities shall have requested to be included thereinCompany; provided, however, that (if all securities requested to be included in such registration and underwriting by holders of Registrable Securities and parties other than with respect the Company are not so excluded by the Underwriter, then the number of such included securities shall be allocated proportionately among all parties (according to the number of securities requested to be registered) having the right to request registration of securities (including holders of -------- ------- Registrable Securities). If securities requested to be registered by holders of Registrable Securities that are entitled excluded pursuant to make a Demand Registration Request this Section 2.2(b), such exclusion shall be apportioned among such holders in the same proportion as the number of such securities covered by the respective holder's instant registration request bears to the total number of such securities covered by the instant registration requests of all persons (as hereinafter definedincluding holders of Registrable Securities)) if an Incidental Registration is an underwritten offering. If any holder of Registrable Securities disapproves of the terms of any underwriting subject to this Section 2.2(b), then such holder may elect to withdraw therefrom by written notice to the managing underwriter Company and the Underwriter. Any securities excluded or underwriters may select shares for inclusion withdrawn from such underwriting shall be withdrawn from such registration. The Company shall advise all persons seeking to include their securities in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such other basis would be material to the success registration and underwriting of the offeringnumber of each such person's securities that may be so included.

Appears in 1 contract

Samples: Registration Rights Agreement (Flashnet Communications Inc)

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